Bangalore District Court
M/S. Texonic Instruments vs M/S. F1 Infotech(P) Ltd on 10 December, 2020
IN THE COURT OF THE LXXXIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE AT BENGALURU CITY [CCH84]
:Present:
Sri N.Sunil Kumar Singh, B.Com., LL.B.,
LXXXIII Addl. City Civil & Sessions Judge,
Bengaluru
Dated on this the 10th day of December 2020
COM.O.S.No.5871/2016
Plaintiff M/s. Texonic Instruments,
A registered partnership Firm having
its office at: No. 387, 1st Cross,
12th Main, Indiranagar,
Bengaluru 560 038.
Duly Rep. by its Partners:
Mr. H. Milapchand,
S/o. Late Hansraj Bhandari
Sandeep S/o. Mr. H. Milapchand
and also by the Authorized Signatory
of the firm: Mr. Anil Runwal,
S/o. Mr. Subhashchand Runwal.
[By Sri. B.S.S, Advocate]
/v e r s u s/
Defendant: M/s. F1 Infotech(P) Ltd.,
A Private Ltd., Company duly
registered under the companies Act,
1956 having its registered office:
ED 55C, Pitam Pura,
New Delhi - 110 088,
By its Directors:
Mr. Sunil Gupta &
Mr. Manish Monocha
[By Sri. P.S, Advocate]
2
CT 1390_Com.O.S.58712016_Judgment .doc
Date of Institution of the suit : 12/08/2016
Nature of the suit : Recovery of Money
Date of commencement of : 29/09/2018
recording of the evidence
Date on which the Judgment : 10/12/2020
was pronounced.
: Year/s Month/s Day/s
Total duration
04 03 28
JUDGMENT
This suit is filed by the plaintiff against defendant for recovery of money and such other reliefs.
2. The facts in brief of the plaintiff's case is that plaintiff is wholesale dealer of computer components including its Peripherals & parts. The defendant is one of the customer to whom the plaintiff used to supply computer components on credit basis from time to time for the purpose of business under various invoices. The credit purchase by the defendant will be made by placing purchase orders and defendant has availed the services of the plaintiff for maintenance and repairs of computer components which are purchased by the defendant from the plaintiff. The defendant used to place purchase order on credit basis and plaintiff used to supply computer components as required by the defendant. The plaintiff also raised service bills with respect to various service contracts taken from the plaintiff by defendant. The plaintiff also raised service bills with respect to various 3 CT 1390_Com.O.S.58712016_Judgment .doc contracts taken from plaintiff by the defendant. The plaintiff has maintained running Account in the regular course of business transaction for having supplied materials to the defendant between 09/04/2015 to 31/03/2016. Later the Account was struck and the defendant was due in a sum of Rs.24,17,545/ towards service and maintenance Account and also liable to pay sum of Rs.88,72,161/ towards supply of computer parts and accessories. Thus the defendant is due in sum of Rs. 1,12,89,706/ to the plaintiff. The defendant has acknowledged the receipt of goods from the plaintiff from 01/04/2015 to 10/08/2016 as per the statement of Account maintained by plaintiff in the regular course of business transaction. In order to discharge the said liability the defendant has issued cheque bearing No. 4817904 dated 08/10/2005 for sum of Rs. 1,11,17,024/ in favour of the plaintiff assuring to honour the same whenever presented for encashment. Later defendant has requested the plaintiff not to present the cheque on several occasions and he will issued fresh cheque for the amount due. Despite of repeated demands and requests, since defendant not paid the balance outstanding. The plaintiff has issued Legal Notice to the defendant on 21/07/2016 calling upon the defendant to pay outstanding balance amount of Rs. 1,12,89,706/ along with interest @ 18% per annum in sum of Rs. 20,37,715/ in total sum of Rs. 1,33,27,421/. Though the defendant received said Legal Notice on 25/07/2016, the defendant neither replied nor complied. Hence without any alternative plaintiff 4 CT 1390_Com.O.S.58712016_Judgment .doc has filed present suit against defendant for recovery of Rs.1,33,27,421/ along with interest @ 18% per annum from the date of suit till realization and prayed to decree the suit.
3. The brief averments of written statement filed by defendant is that suit of the plaintiff is not maintainable and it is liable to be dismissed. The present suit is filed by plaintiff on the basis of purchase order bearing No. F1/201415/129 and F1/201415/130 dated 25/03/2015 for sum of Rs.78,82,414/ and Rs.20,09,266/ respectively. The said purchase order comprise of three components which are Hardware, Software licenses and Maintenance & Services. The said purchase order were placed by the defendant's Registered office situated at New Delhi to the plaintiff's Branch office at New Delhi. The hardware were supplied through local sales in New Delhi from Branch office of the plaintiff to the registered office of the defendant at New Delhi. The invoices relating to hardware and software licenses were also raised by the plaintiff from their Branch office at New Delhi. Hence from the said facts it is clear that there is mis joinder of cause of action with regard to the claim of plaintiff against the defendant herein. Thus this court has no territorial jurisdiction to try the suit in this court.
4. The present suit transaction relates to M/s. Check Point Software Technologies Ltd., who are the original equipment manufacturer. The transaction between plaintiff 5 CT 1390_Com.O.S.58712016_Judgment .doc and defendant was devised by M/s. Check Point as per the documents produced by the defendant it discloses that the defendant has placed purchase order on behalf of M/s. Check Point who is necessary party to decide the matter in issue in the present suit. Since M/s. Check Point is not impleaded as party to the proceeding, the present suit is liable to be dismissed. The plaintiff is attempting to mislead this court by claiming amount from the defendant.
5. M/s. Check Point was the manufacturer and supplier of Firewall and other IT security services. The end customer was National Informatic Centre which act through National Informatic Centre services Inc. Interalia the products of M/s. Check Point were sold through the defendant to the end customer. The present suit of the plaintiff reportedly not in favour of doing transaction with OmniTel at the behest of M/s. Chech Point. The present defendant is the reseller like OmniTel was pulled into transaction and M/s. Check Point assured the defendant that the transaction would be back to back. Thus there was no reason for the defendant to be supplier to another reseller unlike usual transaction where the defendant would be supplier to the end customer. On 20/01/2015 the end customer NIC placed two purchase orders bearing No. 16147 and 16148 upon National Informatic Centre Services Inc. for supply of firewall items manufactured by M/s. Check point. While National Informaric Centre services Inc not placed any purchase order 6 CT 1390_Com.O.S.58712016_Judgment .doc to M/s. Check Point directly or to the reseller. The Accounts Manager of M/s. Check Point who is also Relationship Manager of NIC and NICSI in order to meet the sales targets proceeded to process the order towards this end on 17/2/2015 and the Accounts Manager Mr. Mayank Sethi sent Email to the defendant requesting to coordinate with plaintiff in order to get register with plaintiff for carrying out the transaction of NIC and NICSI. On 20/3/2015 the Accounts Manager of M/s. Check Point Mr. Mayank Sethi sent Email to the defendant containing detailed purchase order to be placed to the plaintiff on behalf of NIC and NICSI. Based on the said instruction of Mayank Sethi who is Accounts Manager of M/s. Check Point, this defendant has issued two purchase orders to the plaintiff on 25/3/2015 for Rs.1,13,32,876/ for supply of products as detailed by the Accounts Manager of M/s.Check Point. As per the said purchase order 25% of the amount was to be paid against delivery of goods and balance amount has to be paid within 60 days from the date of issuance of post dated cheque. The purchase orders placed by defendant to the Registered office of plaintiff at New Delhi and plaintiff by its Branch Office situated at New Delhi supplied the said products on 26/3/2015 to NICSI for Rs.1,18,85,823/.
6. On 30/3/2015 & 01/04/2015 plaintiff sent Email to the defendant seeking amendment to the purchase order along with other details. Anyhow the defendant has supplied 7 CT 1390_Com.O.S.58712016_Judgment .doc details of purchase orders as per amended purchase order which clearly discloses this court has no jurisdiction to try the suit. On 2/5/2015 the Account Manager of M/s. Check Point sent Email to defendant stating that OmniTel is required to place purchase order with respect to products supplied by the plaintiff. Thus the Omnitel placed purchase order on defendant for Rs.1,15,29,238/ and payment shall be made within 45 days from the date of delivery of the product. From 20/5/2015 to 11/8/2015 Omnitel sent several Emails to defendant enquiring about delivery of material as per purchase order and copy of which marked to the Accounts Manager of M/s. Check Point. On 21/6/2015 plaintiff sent Email informing the defendant that the material under purchase order are likely to be received within 2 to 3 days and defendant was requested to arrange for 25% of payment to be sent through RTGS as per purchase order placed by defendant on the plaintiff. Despite of not delivering the goods as required by the defendant, plaintiff continued to persist defendant for payment of 25% through Email on 26/6/2015. The Account Manager of M/s. Check Point is completely responsible for the transaction which was existed between plaintiff and defendant on placing of such purchase orders. Anyhow on the assurances of Accounts Manager of M/s. Check Point, defendant issued Cheque No.481704 dated 8/10/2015 drawn on YES Bank in favour of plaintiff for sum of Rs.1,11,17,024/ which was communicated to the plaintiff on 8/8/2015. On perusal of 8 CT 1390_Com.O.S.58712016_Judgment .doc Email of plaintiff, it is pertinent to note that the supplies were not completely made by plaintiff as per purchase orders on 10/8/2015.
7. On 11/8/2015 defendant received hardware along with invoice No.DBKH16W27 and DBKH16W28 dated 10/8/2015 for sum of Rs.7,32,132.09 and Rs.17,45,087.66 subject to VAT @ 5% Local Sales happened at New Delhi. On 11/8/2015 defendant has received Email along two software Sales Invoices raised by plaintiff at New Delhi bearing No.DBKS16W5 and DBKS16W6 dated 10/8/2015 for Rs.53,64,099.93 and Rs.10,30,841.14 respectively including VAT @ 5% on local sales at New Delhi. Again on 11/8/2015 the plaintiff have received another two invoices bearing No.KS16P213 and KS16P215 dated 10/8/2015 for Rs.5,08,147.73 and Rs.19,52,567.50 respectively including sales tax. Accordingly the defendant has supplied hardware and software licenses received from the plaintiff to OmniTel and on verification repeatedly there was short supply of licenses and products by the plaintiff. Thus plaintiff clearly violated the terms contained in the purchase order placed by the defendant on the plaintiff for supply of hardware and software licenses and other services. Since the products were not completely supplied in terms of purchase order by plaintiff to the defendant and since there is violation of terms of purchase order, plaintiff is not entitled either to 25% of the 9 CT 1390_Com.O.S.58712016_Judgment .doc amount on the supply made nor balance amount as claimed in the suit.
8. The defendant after vigorous follow up with M/s.Check Point more particularly with Account Manager Mr.Mayank Sethi found deficit license were supplied by the plaintiff. Thus plaintiff is not entitled to receive the amount of the transaction from the defendant. On 14/9/2015 defendant has sent Email to OmniTel attaching the deficit software licenses received from Account Manager of M/s.Check Point and completed the delivery as per purchase orders placed upon defendant by OmniTel. On 21/9/2015 the defendant has sent Emial to OmniTel requesting to release the payment against invoices raised. But due to short supply of products and breach of contract OmniTel not sent payment to the defendant. On 7/10/2015 the defendant has sent Email to plaintiff requesting not to deposit the cheque due to delay in delivery of licenses and the other products. But plaintiff has informed defendant that they will produce the cheque to encash the same. Immediately defendant has sent Email to the plaintiff stating that the licenses issued has been resolved only after 15/9/2015 and OmniTel has accepted the delivery accordingly and defendant requested the plaintiff to hold the cheque for some more time. Despite of various correspondences between plaintiff and defendant the matter with regard to payment was not resolved. Since defendant not received payment from OmniTel towards supply 10 CT 1390_Com.O.S.58712016_Judgment .doc of products which is evident from the Email dated 23/5/2016 sent by the defendant to the plaintiff. This defendant has received Legal Notice sent by plaintiff dated 21/7/2016, but not replied to the same and defendant has sent Email dated 28/7/2016 to Mayank Sethi who is Accounts Manager of M/s. Check Point requesting him to intervene and complete the pending transaction of M/s. Check Point and the same was not responded. Since the defendant has not involved in the present transaction as claimed by the plaintiff, the plaintiff is not entitled to recover sum of Rs.1,33,27,421/ along with interest @18% per annum from the date of suit till realization. Hence it is prayed to dismiss the suit of plaintiff with cost.
9. On the above pleadings, following issues have been framed by my learned predecessor:
1 Whether the plaintiff proves that he is entitled to recover a sum of Rs.1,12,89,706/ from defendant?
2 Whether the plaintiff proves that the defendant issued cheque bearing No.4817904 dt.
8/10/2015 for Rs.1,11,17,024/ in his favour towards discharge of said liability?
3 Whether the suit is bad for nonjoinder of necessary parties?
4 Whether the suit is bad for misjoinder of causes of action?
11CT 1390_Com.O.S.58712016_Judgment .doc 5 Whether the defendant proves that this court has no territorial jurisdiction to try the suit?
6 Whether the plaintiff is entitle for the relief claimed in the above suit?
7 What order or decree?
10. Even though issue No.5 has to be treated as preliminary issue as per the issues framed by this court on 4/3/2017. During pendency of the present suit memo was filed by defendant on 1/4/2017 to consider issue No.5 along with main suit. Hence issue No.5 considered along with main suit.
11. In order to prove the case of plaintiff, the partner of plaintiff company got examined himself as PW.1 by filing his affidavit evidence and got marked documents Ex.P.1 to P.18. On behalf of defendant the Director of defendant company got himself examined as DW.1 by filing his affidavit evidence and got marked documents Ex.D.1 to D.25.
12. Heard arguments of both the sides.
13. My findings to the above issues are as under:
ISSUE No.1 : Affirmative
ISSUE No.2 : Affirmative
ISSUE No.3 : Negative
12
CT 1390_Com.O.S.58712016_Judgment .doc ISSUE No.4 : Negative ISSUE No.5 : Negative ISSUE No.6 : Partly affirmative ISSUE No.7 : As per my final order for the following:
REASONS
14. ISSUES No.1 to 6 : Since these six issues are interconnected to each other, they have been taken together for my discussion in order to avoid repetition of facts and findings to be given thereunder.
15. The case of plaintiff is that plaintiff is wholesale dealer of computer components including its Peripherals & parts. The defendant is one of the customer to whom the plaintiff used to supply computer components on credit basis from time to time for the purpose of business under various invoices. The credit purchase by the defendant will be made by placing purchase orders and defendant has availed the services of the plaintiff for maintenance and repairs of computer components which are purchased by the defendant from the plaintiff. The defendant used to place purchase order on credit basis and plaintiff used to supply computer components as required by the defendant. The plaintiff also raised service bills with respect to various service contracts taken from the plaintiff by defendant. The plaintiff also raised service bills with respect to various contracts taken from 13 CT 1390_Com.O.S.58712016_Judgment .doc plaintiff by the defendant. The plaintiff has maintained running Account in the regular course of business transaction for having supplied materials to the defendant between 09/04/2015 to 31/03/2016. Later the Account was struck and the defendant was due in a sum of Rs.24,17,545/ towards service and maintenance Account and also liable to pay sum of Rs.88,72,161/ towards supply of computer parts and accessories. Thus the defendant is due in sum of Rs. 1,12,89,706/ to the plaintiff. The defendant has acknowledged the receipt of goods from the plaintiff from 01/04/2015 to 10/08/2016 as per the statement of Account maintained by plaintiff in the regular course of business transaction. In order to discharge the said liability the defendant has issued cheque bearing No. 4817904 dated 08/10/2005 for sum of Rs. 1,11,17,024/ in favour of the plaintiff assuring to honour the same whenever presented for encashment. Later defendant has requested the plaintiff not to present the cheque on several occasions and he will issued fresh cheque for the amount due. Despite of repeated demands and requests, since defendant not paid the balance outstanding. The plaintiff has issued Legal Notice to the defendant on 21/07/2016 calling upon the defendant to pay outstanding balance amount of Rs. 1,12,89,706/ along with interest @ 18% per annum in sum of Rs. 20,37,715/ in total sum of Rs. 1,33,27,421/. Though the defendant received said Legal Notice on 25/07/2016, the defendant neither replied nor complied. Hence without any alternative plaintiff 14 CT 1390_Com.O.S.58712016_Judgment .doc has filed present suit against defendant for recovery of Rs.1,33,27,421/ along with interest @ 18% per annum from the date of suit till realization.
16. In order to prove the case of plaintiff one of the partner of plaintiff company got examined himself as PW.1 by filing his affidavit evidence, reiterated plaint averments and deposed that he was authorized by plaintiff company to represent them and depose on their behalf and he has personal knowledge about the transaction. Hence he is deposing on behalf of plaintiff. It is also deposed by PW.1 that plaintiff is wholesale dealer of computer components including its Peripherals & parts and also software to support services and defendant is one of the customer to whom the plaintiff used to supply IT products on credit basis from time to time under various invoices. It is also deposed by PW.1 that the credit purchases made by defendant by placing purchase orders at Bengaluru office as well as in New Delhi office. Upon placing such orders Bengaluru office being the Head Office will be taking decision for supply materials to the defendant. Accordingly IT products were supplied to the defendant from the manufacturer M/s. Check Point and same is distributed at Bengaluru office and also in New Delhi office of the plaintiff. It is also deposed by PW.1 that defendant has availed services, maintenance and repairs of IT products from the plaintiff to the products purchased by them on credit basis. In this regard plaintiff used to raise invoices and 15 CT 1390_Com.O.S.58712016_Judgment .doc maintaining Account in the regular course of business transaction. There was running Account of the defendant with the plaintiff for having supplied IT products from 09/04/2015 to 31/03/2016. It is also deposed by PW.1 that as per the Account maintained by them in the regular course of business transaction. With reference to the purchase made by defendant there was outstanding balance of Rs.24,17,545/ towards service and maintenance of the IT components and there is balance of Rs.88,72,161/ towards supply of computer parts and accessories. Thus there is total balance outstanding in sum of Rs.1,12,89,706/. In order to substantiate the same the ledger extract maintained by plaintiff in the regular course of business transaction with respect to purchase made by defendant are marked as Ex.P.1 and Ex.P.2. The recitals of which discloses such balances were outstanding as on 27/11/2015. It is also deposed by PW.1 that defendant has placed purchase orders which are marked as Ex.P.3. The recitals of Ex.P.3 discloses that defendant has placed purchase orders for purchase of IT components and accessories from the plaintiff. PW.1 further deposed that they have raised invoices for having supplied IT components and accessories and maintenance services provided to the IT component of the defendant and copies of invoices are marked as Ex.P.4 to Ex.P.7. The recitals of which clearly discloses that for having placed purchase orders by the defendant such invoices as per Ex.P.4 to Ex.P.7 have been raised in the name of defendant. In the cross 16 CT 1390_Com.O.S.58712016_Judgment .doc examination of DW.1 by plaintiff's counsel, DW.1 has specifically admitted that the defendant placed purchase orders on the plaintiff as per Ex.P.3 and invoices were raised by plaintiff for having supplied IT components and accessories as per Ex.P.4 to Ex.P.7. It is further deposed by PW.1 that to discharge amount which is outstanding the defendant has issued cheque No.4817904 dated 08/10/2005 for Rs.1,11,17,024/ in favour of plaintiff and assured to honour the same whenever presented for encashment. In order to substantiate the same, original cheque issued in the name of plaintiff is marked as Ex.P.8. Issuance of cheque Ex.P.8 in the name of plaintiff by defendant is not in dispute. In the cross examination of DW.1 he has specifically admitted that defendant have issued Cheque Ex.P.8 in the name of plaintiff. But DW.1 claimed that said cheque Ex.P.8 was issued for security purpose of the business transaction which was existed between plaintiff and defendant and not for payment. The contents of Ex.P.8 were filled by defendant and were handed over to the plaintiff which clearly establishes that said Cheque Ex.P.8 was issued by defendant to the plaintiff to discharge the amount which was outstanding as per the recitals of Ex.P.1 and Ex.P.2.
17. It is further deposed by PW.1 that the cheque issued by DW.1 was not presented by plaintiff for encashment, since defendant used to request the plaintiff not to present the said cheque for encashment and he will issue fresh cheque for 17 CT 1390_Com.O.S.58712016_Judgment .doc encashment. In order to substantiate the same the correspondences taken place between plaintiff and defendant in the usual course of business transaction through Email are together marked as Ex.P.9 and to confirm the products were delivered to the defendant, the Email is marked as Ex.P.9(a). The recitals of Ex.P.9 clearly discloses that the products were supplied by plaintiff to the defendant on purchase orders Ex.P.3 and invoices were raised as per Ex.P.4 to Ex.P.7 and despite of receipt of such products which are supplied by plaintiff, defendant not paid the outstanding balance amount as per recitals of Ex.P.1 and Ex.P.2 to the plaintiff. Thus without any alternative plaintiff has issued Legal Notice to the defendant calling upon them to pay outstanding balance amount in sum of Rs.1,12,89,706/ along with interest @24% per annum. In order to substantiate the same the copy of Legal Notice is marked as Ex.P.10. For having sent said Legal Notice to the defendant, the postal receipts are marked as Ex.P.11 and for having served the said Legal Notice on the defendant, tracking sheet of the Postal Department is marked as Ex.P.12. The recitals of which clearly discloses that Ex.P.10 Legal Notice was serviced on the defendant. Even otherwise there is no dispute with regard to issuance of such notice as per Ex.P.10 by plaintiff to the defendant at the relevant point of time. But admittedly after receipt of such Legal Notice Ex.P.10, defendant not replied nor complied to the said notice of the plaintiff. This fact is admitted in the cross examination of 18 CT 1390_Com.O.S.58712016_Judgment .doc DW.1 by the plaintiff's counsel. When defendant has not replied to Ex.P.10 an adverse inference can be drawn against defendant for having supplied material by the plaintiff as per Ex.P.4 to Ex.P.7 and maintaining the Account in the regular course of business transaction by the plaintiff as per Ex.P.1 and Ex.P.2 and balance outstanding as claimed by plaintiff in the present suit. For having produced the tracking sheet Ex.P.12, Certificate U/S.65(B) of Indian Evidence Act is produced which is marked as Ex.P.13. The other correspondences which are taken place between plaintiff and defendant with regard to payment of outstanding balance are marked together as Ex.P.14 to Ex.P.18. Even though PW.1 is cross examined by defendant's counsel at length, nothing is elicited to prove that defendant is not due to pay to the plaintiff as claimed in the present suit. The suggestion made to PW.1 by the defence counsel clearly discloses that the materials were supplied by plaintiff to the defendant on the purchase orders Ex.P.3 and raised invoices as per Ex.P.4 to Ex.P.7 and there is outstanding balance of Rs.1,12,89,706/ as per the recitals of Ex.P.1 and Ex.P.2. The stray admission elicited with regard to supply of materials and payment outstanding will nowhere helpful to the defendant to prove that they are not liable to pay such amount to the plaintiff as on the date of filing of this suit and the admissions elicited in the cross examination of PW.1 by defence counsel with regard to purchase orders placed by defendant were honoured by M/s. Check Point and products were supplied to the 19 CT 1390_Com.O.S.58712016_Judgment .doc defendant is nothing to do with the transaction which are existed between plaintiff and defendant. The other suggestions made to PW.1 by defence counsel that defendant is not liable to pay the amount as claimed in the suit and since the main supplier M/s. Check Point is not made as party to the present proceeding is nothing to do with the transaction which are existed between plaintiff and defendant. Hence the evidence and documents by PW.1, plaintiff are able to prove that defendant is liable to pay the amount mentioned in Ex,.P.1 and Ex.P.2 to the plaintiff as per the purchase orders Ex.P.3 towards invoices raised Ex.P.4 to Ex.P.7.
18. In order to rebut the evidence and documents of PW.1 herein the director of defendant company got examined himself as DW.1 by filing affidavit evidence, reiterated written statement averments and deposed that he has been authorized on behalf of defendant to depose in the present suit and in order to substantiate the same the resolution of defendant company is marked as Ex.D.1 which clearly discloses that DW.1 is authorized by defendant company to represent them and to depose on their behalf. It is also deposed by DW.1 that dispute was initiated at the behest of M/s. Check Point Software Technologies Limited who is the original equipment manufacturer and on 20/3/2015 one Mr. Mayank Sethi from M/s. Check Point sent Email to the defendant requesting to place two purchase orders on the 20 CT 1390_Com.O.S.58712016_Judgment .doc plaintiff and in order to substantiate the same copy of Email sent by M/s. Check Point to the defendant is marked as Ex.D.2 and details of purchase orders to be placed is marked as Ex.D.3 and for having sent Ex.D.3 to the defendant by M/s. Check Point, copy of Email is marked as Ex.D.4 and the purchase order is also enclosed along with Ex.D.4. It is also deposed by DW.1 that based on the request of said Mayank Sethi of M/s. Check Point the defendant have placed two purchase orders as per Ex.P.3 on the plaintiff for sum of Rs.78,82,414/ and Rs.20,09,266/ respectively. Placing of such purchase orders Ex.P.3 by defendant on the plaintiff is not in dispute. But it is claimed by DW.1 that on the request of M/s. Check Point they have placed purchase orders. But in order to substantiate the same none of the witnesses on behalf of M/s. Check Point is examined on behalf of defendant. Only on the basis of Ex.D.1 to Ex.D.4 it cannot be construed that defendant have placed purchase orders Ex.P.3 on the basis of request of M/s. Check Point. The other correspondences which are taken place between plaintiff and defendant with regard to supply of materials are marked as Ex.D.4 to Ex.D.24 and for having produced Ex.D.4 to Ex.D.24 the certificate U/S.65(B) of Indian Evidence Act is marked as Ex.D.25. It is also deposed by DW.1 that the purchase orders as per Ex.P.3 were placed by them on 25/3/2015 on the plaintiff and 25% of the payment shall be released on the delivery of the material and 75% shall be paid within 60 days from the date of delivery subject to production of post dated 21 CT 1390_Com.O.S.58712016_Judgment .doc cheque. Admittedly the cheque Ex.P.8 was furnished by defendant to the plaintiff after supply of materials towards balance amount payable towards supply of such material which is not in dispute between parties to the suit. But it is claimed by DW.1 that the purchase orders were placed by defendant at New Delhi office of the plaintiff. Thus this court has no territorial jurisdiction to try the present suit. But in the cross examination of DW.1 by plaintiff's counsel he has specifically admitted that some of the purchase orders were placed at New Delhi and some of the purchase orders were placed at Bengaluru office of the plaintiff and invoices were raised by plaintiff at Bengaluru office which is having head office at Bengaluru. Thus it cannot be construed that Bengaluru Court having no territorial jurisdiction to try the suit. Since the materials were supplied from New Delhi and also from Bengaluru and invoices were raised at both in Bengaluru and New Delhi offices of plaintiff and thus one of the court at New Delhi and Bengaluru have got territorial jurisdiction in which the plaintiff can file suit for recovery of money which is outstanding as per the recitals of Ex.P.1 and Ex.P.2.
19. In the cross examination of plaintiff's counsel DW.1 has specifically admitted that defendant has issued Ex.P.8 to the plaintiff. But it is claimed by defendant that said cheque was issued as security purpose for the business transaction which was existed between plaintiff and defendant. But recitals of Ex.P.8 clearly discloses that the contents of Ex.P.8 22 CT 1390_Com.O.S.58712016_Judgment .doc were filled and delivered to the plaintiff by defendant. Thus it cannot be construed that said cheque Ex.P.8 was issued by defendant to the plaintiff for security purpose of the business transaction. In the cross examination of DW.1 by plaintiff's counsel DW.1 has specifically admitted that they have placed purchase orders as per Ex.P.3 on the plaintiff and materials were supplied to them belatedly and some of the components were not supplied. In order to substantiate the same there is no convincing evidence or documents produced on behalf of defendant on their behalf. It is also admitted in the cross examination of DW.1 by the plaintiff's counsel that Ex.P.8 cheque was issued by defendant to the plaintiff towards purchase orders Ex.P.3. It is also admitted that as per Ex.P.4 to Ex.P.7 the value of products supplied were approximately Rs.98,00,000/ to Rs.99,00,000/. It is also admitted that after payment of 25% of amount from the date of delivery within 60 days the remaining amount has to be paid by defendant on production of post dated cheque which is already marked as Ex.P.8. Admittedly as per the recitals of Ex.P.1 and Ex.P.2 there was outstanding balance of Rs.1,12,89,706/ was due to be payable by defendant to the plaintiff. Thus the notice Ex.P.10 was issued by plaintiff. In the cross examination of DW.1 by the plaintiff's counsel, defendant has specifically admitted that Ex.P.10 notice was served on them, but defendant not replied to the said Legal Notice. Hence adverse inference can be drawn against defendant with regard to the claim of plaintiff in the present 23 CT 1390_Com.O.S.58712016_Judgment .doc suit. It is also admitted by DW.1 in the cross examination of plaintiff's counsel that plaintiff has sent Email as per Ex.D.9 to Ex.D.11 to the defendant. Despite of which they have not complied to the request of plaintiff to pay balance amount outstanding as claimed in the suit. It is also admitted by DW.1 in the cross examination of plaintiff's counsel that the products mentioned in Ex.P.3 were supplied by plaintiff to the defendant and raised invoices as per Ex.P.4 to Ex.P.7. The correspondences which was taken place between plaintiff and defendant as per Ex.P.9 and Ex.P.9(a) is admitted by DW.1 in the cross examination and the recitals of Ex.D.5 to Ex.D.24 clearly discloses that there was some correspondences between plaintiff and defendant with regard to payment outstanding which is not complied by defendant at the relevant point of time.
20. On going through the evidence of PW.1 and the documents Ex.P.1 to Ex.P.18, it is pertinent to note that defendant have placed purchase orders as per Ex.P.3 and plaintiff have supplied the said materials to the defendant as per purchase order and raised invoices as per Ex.P.4 to Ex.P.7 and plaintiff have maintained ledger Account with respect to credit transaction made by defendant with the plaintiff as per the recitals of Ex.P.1 and Ex.P.2 and there was outstanding balance of Rs.1,12,89,706/ as on 10/8/2015 and despite of issuance of Legal Notice Ex.P.10 and after service of such notice defendant have not complied and it is 24 CT 1390_Com.O.S.58712016_Judgment .doc also admitted fact that Ex.P.8 was issued by defendant to discharge outstanding balance. But it was not honoured by plaintiff and requested the plaintiff not to present the said cheque for encashment. For having supplied such material by plaintiff to the defendant as per recitals of Ex.D.1 to Ex.D.4 cannot be taken into consideration since the purchase orders Ex.P.3 were placed by defendant on the plaintiff and despite of supply of such materials raising invoices Ex.P.4 to Ex.P.7 the amount outstanding was not paid by defendant. It is the claim of PW.1 that there is outstanding balance of Rs.1,12,89,706/ as on 10/8/2015 and since said amount is not paid till filing of suit, the defendant is liable to pay interest @ 18% per annum which is Rs.20,37,715/. Thus defendant is liable to pay total sum of Rs.1,33,27,421/ on the date of filing of this suit. But admittedly there is no written contract or agreement between parties to the suit to claim such interest @ 18% per annum on outstanding balance of Rs.1,12,89,706/ from the date of transaction till date of filing of this suit. This plaintiff is not entitled to claim such interest of Rs.20,37,715/ which accrued from the date of transaction till date of filing of the suit. But taking into consideration the nature of transaction which was existed between parties to the suit and the amount outstanding, plaintiff is entitled to recover outstanding balance of Rs.1,12,89,706/ from the defendant along with interest @ 9% per annum from the date of suit till realization. The evidence and documents of PW.1 clearly substantiate that 25 CT 1390_Com.O.S.58712016_Judgment .doc defendant are liable to pay outstanding balance of Rs.1,12,89,706/ to the plaintiff as per recitals of Ex.P.1 and Ex.P.2. Thus plaintiff is entitled to recover said sum from the defendant along with interest @9% per annum from the date of suit till realization. Accordingly I hold issues No.1 and 2 as affirmative, issues No.3 to 5 as negative and issue No.6 as partly affirmative.
21. ISSUE No.7 : In view of my discussion on issues No.1 to 6 above, I proceed to pass following:
ORDER Suit of the plaintiff is partly decreed with cost.
Plaintiff is entitled to recover sum of Rs.1,12,89,706/ along with interest @ 9% per annum from the date of suit till realization from the defendant.
Draw decree accordingly.
[Dictated to the Judgment Writer; transcript thereof corrected, initialed and then pronounced by me, in the Open Court on this the 10th day of December 2020] [N. Sunil Kumar Singh] LXXXIII Additional City Civil Judge.
BENGALURU.
ANNEXURE
1. List of witnesses examined on behalf of the Plaintiff:
PW.1 Sri. Sandeep 26 CT 1390_Com.O.S.58712016_Judgment .doc
2. List of witnesses examined on behalf of the Defendant:
DW.1 Sri. Sunil Kumar Gupta
3. List of documents marked on behalf of the Plaintiff:
Ex.P.1 : Computerized Ledger Account spare. Ex.P.2 : Computerized Ledger Account service containing two pages.
Ex.P.3 : Computerized two purchase order
Ex.P.4 : Tax Invoice
Ex.P.5 : Tax Invoice
Ex.P.6 : Tax Invoice
Ex.P.7 : Tax Invoice
Ex.P.8 : Cheque No.481704
Ex.P.9 : Printed Mail correspondence letter
containing 7 pages
Ex.P.9(a) : Copy of Mail page No.62 dt.7/10/2015.
Ex.P.10 : Office copy of Legal Notice.
Ex.P.11 : Three postal receipts 3 numbers
Ex.P.12 : Internet copy of the postal tracking report
containing 3 numbers.
Ex.P.13 : Certificate U/S.65(B) of I.EAct.
Ex.P.14 : Email correspondence of plaintiff and
defendant (containing 7 pages)
Ex.P.15 : Email correspondence of defendant
enclosing with purchase orders (containing 3 pages) 27 CT 1390_Com.O.S.58712016_Judgment .doc Ex.P.16 : Email correspondence of plaintiff and defendant regarding payment of advance and post dated cheques (containing 6 pages) Ex.P.17 : Email correspondence of plaintiff enclosing stock transfer invoices (containing 3 pages) Ex.P.18 : Email correspondence of plaintiff enclosing invoices and same confirmed by defendant (containing 3 pages).
4. List of the documents marked for the defendant:
Ex.D.1 : Board Resolution dt.29/8/2016 passed by defendant company.
Ex.D.2 : Copy of Email dt. 17/2/2015 sent by Mayank Sethi to the defendant requesting defendant to coordinate with the plaintiff.
Ex.D.3 : Copy of Email dt.20/3/2015 sent by Mayank Sethi to defendant containing details of purchase order to be placed by defendant.
Ex.D.4 : Copy of Email dt. 25/3/2015 sent by defendant to plaintiff.
Ex.D.5 : Copy of Email dated 30/3/2015 and 1/4/2015 exchanged between plaintiff and defendant in relation of amendment of purchase order.
Ex.D.6 : Copy of Email dt.1/4/2015 and 2/5/2015 sent by Mayank Sethi to defendant.28
CT 1390_Com.O.S.58712016_Judgment .doc Ex.D.7 : Copy of Email dt.5/5/2015 sent by OmniTel to defendant.
Ex.D.8 : Copy fo Emails sent to OmniTel to
defendant inquiring about delivery of
materials.
Ex.D.9 : Copy of Email dt.21/6/2015 sent by
plaintiff to defendant.
Ex.D.10 : Copy of Emails dt.26/6/2015 sent by plaintiff to defendant.
Ex.D.11 : Copy of Emails sent by plaintiff to defendant demanding 25% payment.
Ex.D.12 : Copy of Emails dt.8/8/2015 sent by defendant to plaintiff.
Ex.D.13 : Copy of Hardware Tax Invoice bearing No.DBKH16W27 and DBKH16W28 dt.10/8/2015 for the amount of Rs.7,32,132.09 issued by plaintiff.
Ex.D.14 : Copy of Email dt. 11/8/2015 sent by plaintiff to defendant.
Ex.D.15 : Copy of Email dt. 11/8/2015 sent by plaintiff to defendant.
Ex.D.16 : Copy of Emails exchanged between plaintiff and defendant and defendant and OmniTel pertaining to short deficit supply of licenses.
Ex.D.16(a) : Copy of mail page No.211 dt.2/9/2015.
Ex.D.16(b) : Copy of mail page 213 & 214 dt.2/9/2015.
Ex.D.17 : Copy of Emails dt.3/9/2015 sent by Mayank Sethi to defendant.29
CT 1390_Com.O.S.58712016_Judgment .doc Ex.D.18 : Copy of Email dt.14/9/2015 sent by defendant to OmniTel.
Ex.D.19 : Copy of Emails sent by defendant to OmniTel requesting for release of payment.
Ex.D.20 : Copy of Emails dt.7/10/2015 and 15/10/2015 exchanged between plaintiff and defendant.
Ex.D.21 : Copy of Email correspondence between plaintiff and defendant regarding payment balance.
Ex.D.22 : Copy of Email dt.23/5/2016 sent by defendant to plaintiff regarding modality of transaction.
Ex.D.23 : Copy of Emails exchanged between defendant and Mayank Sethi.
Ex.D.24 : Copy of Email dt.28/7/2016 sent by defendant to Mayank Sethi.
Ex.D.25 : Copy of U/S.65B of Indian Evidence Act.
[N. Sunil Kumar Singh] LXXXIII Additional City Civil Judge.
BENGALURU.