Delhi District Court
Mr. Anil Kanodia vs Mr. Lars Villing on 10 January, 2022
-: 1 :-
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTT., SAKET COURTS, NEW DELHI
CS DJ NO. 8047/2016
1. Mr. Anil Kanodia,
Authorised Representative-cum-Director of
Sumridhi Aluminium Pvt. Ltd./
Sumridhi Recycling Pvt. Ltd.
Khasra No. 43, Devoli Mandcol,
Near Balaji Dharam Kanta,
Village - Bhagola, Palwal, Haryana (India)
Also at:
E-23A, East of Kailash, New Delhi - 110067 (India)
2. Sumridhi Aluminium Pvt. Ltd.
Khasra No. 43, Devoli Mandcol,
Near Balaji Dharam Kanta,
Village - Bhagola, Palwal, Haryana (India)
Also at:
E-23A, East of Kailash, New Delhi - 110067 (India)
3. Sumridhi Recycling Pvt. Ltd.
Khasra No. 43, Devoli Mandcol,
Near Balaji Dharam Kanta,
Village - Bhagola, Palwal,
Haryana (India)
Also at:
E-23A, East of Kailash,
New Delhi - 110067 (India) .... Plaintiffs
Versus
1. Mr. Lars Villing
ALBA Metall Nord GmbH
Emsstr. 29
26382 Wilhelmshaven, Germany
Tel: +49(173) 5354440
Email - [email protected]
www.alba.info
CS DJ NO. 8047/2016 Page No. 1 of 25
Anil Kanodia & Others vs. Lars Villing & Another
-: 2 :-
2. Alba Metall Nord GmbH
Postfach 1754, 26357
Wilhelmshaven, Germany
3. Mr. Amit Taneja
Met Globe India (P) Ltd.
S-15, Block-S, Greater Kailash-I,
New Delhi - 110048
Email ID - [email protected]
(Deleted from the array of parties
vide order dated 24.09.2020) .... Defendants
First date before this Court: 02.12.2015
Date of Judgment: 10.01.2022
JUDGMENT:
1. The Suit for Recovery of Rs. 33,04,205/- along with interest @ 18% per annum has been filed by the plaintiffs against the defendants.
2. Facts in brief are that Plaintiff No. 1 Mr. Anil Kanodia is the Director-cum-Authorised Representative of the Plaintiff No. 2 Company Sumridhi Aluminium Pvt. Ltd. (SAPL) and of the Plaintiff No. 3 Sumridhi Recycling Pvt. Ltd. (SRPL) . These two Companies are engaged in trade and commerce and work in coordination with each other. As per the Memorandum & Articles of Association of the two Companies, they are involved in manufacture, buy, sale, exchange alter, improve etc. and to import or export or otherwise dealing Metal Scraps etc. and alloy. The Plaintiff No. 3 (SRPL) is the sister concern of Plaintiff No. 2 (SAPL), which is manufacturing units of two Companies, conduct entire business of trade in metal scrap CS DJ NO. 8047/2016 Page No. 2 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 3 :- and manufacturing of alloy of different grades. In case of breach and service and negligence done by any of the defendants, both the Companies get directly affected and thus both have jointly filed the present suit.
3. It is submitted that in due course of the business, defendant No. 3 (Sh. Amit Taneja since deleted vide order dated 24.09.2020) came to know through the sources known to him about the need and necessity of the plaintiffs for import of material and approached the plaintiffs and facilitated a deal between the Plaintiffs and Defendants No.1 & 2. He fraudulently and dishonestly made the Plaintiff No. 1 believe that Defendants No. 1 & 2 are reputed members of Bureau of International Recycling, which is a globally recognised Institution in scrap trade and that the dealing with the Defendants No. 1 & 2 shall be extremely profitable beyond doubt as they supply excellent grade of material on time at cheapest price and that Defendants No. 1 & 2 under the supervision, guidance and warranty of the Defendant No. 3, would act with complete transparency. He himself took the guarantee of the credentials of the Defendants No.1 & 2 and further made several independent representations to make the plaintiffs believe in his assurances. Plaintiffs believed that the Defendant No. 3 Sh. Amit Taneja would act as an agent for the Defendants No. 1 & 2 and would ensure fair transaction, transparency and honesty at all material times. Various meetings and interactions took place between the Plaintiff No. 1 and defendants at the East of Kailash CS DJ NO. 8047/2016 Page No. 3 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 4 :- address of the Plaintiff No. 1, as well as at the place of the Defendant No. 3. Both the parties entered into an engagement which is evident from these two documents, issued by the Defendants No. 1 & 2, which are:
1. Sales Contract bearing Customer No. 20007539, Contract No. 14115168, L. Villing, Tel.: 0173/5354440, Wilhelmshaven, 31.10.2014 (Page No. 60 & 61 of the paper book respectively).\
2. Proforma Invoice bearing Customer No. 20007539-20, Receipt No. 1451000565.
4. No other document i.e. formal written contract was executed between the parties. Pursuant thereto defendants sent completely defective material altogether of different grade to that which was agreed between the parties. The materials were full of dust and refuse and on offloading it was found that the plaintiffs have received only 20% of the cast aluminum and rest was merely shredded flake aluminum quality with very dusty material which was of no value at all. The plaintiffs were defrauded by the defendants by being supplied with the material different from the one which was agreed between the parties and was of very low quality and value.
5. Various emails dated 10.04.2015, 13.04.2015 and 20.04.2015 were sent by the plaintiffs bringing to the notice of the defendants about the low quality of goods, but the defendants started avoiding responding to the plaintiffs. When the hue and cry was raised by the CS DJ NO. 8047/2016 Page No. 4 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 5 :- plaintiffs, the defendants made another false promise to resolve the entire issue and on insistence of the plaintiffs assured that they would remedy the shortcomings in the second lot of the consignment. The defendants thus compelled the plaintiffs to enter into the second transaction vide Reference No.14115168 vide Container No. MSCU-
9709673 and TCNU-9001066 but the second lot proved to be the worse than the first one.
6. The plaintiffs were compelled to place another order with the defendants on 05.03.2015 with the promise that the loss would be compensated. The plaintiffs who were stuck with the orders on the false promise of the defendants, paid Rs. 9,45,896/- on 05.03.2015 in US Dollars equivalent as advance despite which nothing happened. Again, various emails from May, 2015 till July, 2015 were communicated by the plaintiffs expressing their grievance but the defendants did nothing.
7. The defendants completely embezzled the whole amount and neither gave material nor refunded anything back to the plaintiffs. The plaintiffs again sent several emails dated 31.07.2015, 30.07.2015, 23.07.2015, 24.06.2015 and 10.06.2015 to the defendants, but the defendants maintained their silence.
8. Defendants have thus embezzled a sum of Rs. 9,88,000/- (USD 15200) and Rs. 8,16,205/- (USD 12557) alongwith interest @ 18% per annum. Hence, the present suit has been filed for recovery of Rs. 33,04,205/- along with interest @ 18% per annum.
CS DJ NO. 8047/2016 Page No. 5 of 25Anil Kanodia & Others vs. Lars Villing & Another -: 6 :-
9. The Defendant No. 1 Mr. Lars Villing pursuant to the summons of the Court, sent a letter dated 28.09.2016 informing that he is 100% employed with the Defendant No. 2 and handles the export business to India and informed that all further communications be done with him. He also claimed that the jurisdiction was of Federal Republic of Germany only.
10.Thereafter, Defendant No. 1 filed written statement submitting that no cause of action is made out against the answering Defendant No. 1, but the written statement has been filed only to avoid any default and the suit of the plaintiff is liable to be dismissed.
11.Defendant No. 3 Sh. Amit Taneja (since deleted) filed a detailed written statement, wherein he took the preliminary objections that the Plaintiffs No. 2 & 3 are different and distinct entities, who entered into two different transactions with the Defendant No. 2 at different periods of time for different projects. They are neither connected in any way nor did they impact directly or indirectly on each other. Intentionally, the two transactions between the two separate entities i.e. Plaintiffs No. 1 & 2 have been filed collectively in the suit which is barred under Order 1 CPC. It is further submitted that there is no individual transaction between the Plaintiff No. 1, Defendant No. 1 or Defendant No. 3. The Contract No. 14115168 dated 31.10.2014 was executed exclusively between the Plaintiff No. 3 with the Defendant No. 2 and Met Globe India (P) Ltd. The other transaction bearing CS DJ NO. 8047/2016 Page No. 6 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 7 :- Contract No. 15030456 dated 05.03.2015 was executed between the Plaintiff No. 2, Defendant No. 2 and Met Globe India (P) Ltd. The intent of roping in Defendant No. 1 and Defendant No. 3 in the personal capacity is only to harass and pressurize them by misusing the process of law. Moreover, Plaintiff No. 1 Sh. Anil Kanodia has not been authorised by the Plaintiff No. 2 or Plaintiff No. 3 by a Board Resolution and he is not competent to institute the present suit.
12.It has been further submitted that the Defendant No. 3 has been wrongly joined as a defendant in the present suit and that this Court has no territorial jurisdiction to entertain the present suit. Furthermore, Certificate under Section 65-B of the Indian Evidence Act has not been annexed to prove various emails on which the reliance has been placed by the plaintiff.
13.On merits, it has been explained that the Defendant No. 3 Sh. Amit Taneja and Plaintiff No. 1 Sh. Anil Kanodia are in regular business since the year 2011 and have been involved in various commercial transactions involving 17 supplies all across Europe, Africa, Asia, America and South America and there has not been any allegations against the Company of the answering defendant in any respect. The Defendant No. 2 is in the business of metal scrap, while the Defendant No. 3 is the Director of Met Globe India (P) Ltd., who is in the business of facilitating purchase transactions of metal scrap between the overseas suppliers and Indian buyers. The limited role of Met Globe CS DJ NO. 8047/2016 Page No. 7 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 8 :- India (P) Ltd. in these two transactions was only of introduction of suppliers and buyers and over see timely supply and timely remittance of the payments. The Met Globe India (P) Ltd. was not concerned with the commercial transactions, pricing, quality, terms of payments, carrier of goods, insurance of goods, quality check, banking transaction and all other commercial activities which were done to be dealt with by the suppliers and buyers directly.
14.It is explained that pursuant to the Contract No. 14115168 dated 31.10.2014 the entire goods stands delivered and payments have been made and no cause of action survives in respect of this transaction. After the goods were delivered, the role of Met Globe India (P) Ltd. stood discharged and satisfied. The defendant No. 3 has further explained that Contract No. 14115168 dated 31.03.2014 was in respect of Aluminum Scrap Zorba. Defendant No. 3 had no control over the quality of the material supplied.
15.The other Contract No. 15030456 dated 05.03.2015 relates to Aluminum Scrap Tread on which the plaintiffs have refund of payment issues. The plaintiffs had failed to adhere to pay the advance within 05 working days as per the trade practice but were made in about month's time from the date of commitment of purchase. Moreover, the payments were made directly to the suppliers (Defendants No. 1 & 2) by the Plaintiff No. 2 and contract could not be completed either by the Plaintiff no. 2 or the suppliers and CS DJ NO. 8047/2016 Page No. 8 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 9 :- no fee was paid to the answering defendant. Rather, the answering defendant suffered loss of business opportunity on account of default of the Plaintiff No. 2.
16.The defendant No. 3 Sh. Amit Taneja denied all the allegations made in the plaint and submitted that the suit of the plaintiff is liable to be dismissed.
17.An application under Order 1 Rule 10 read with Order 7 Rule 11 CPC dated 19.10.2019 moved on behalf of Defendant No. 3 Mr. Amit Taneja for deletion of his name from the array of parties, was allowed vide order dated 24.09.2020. This order was challenged before the Hon'ble High Court of Delhi, but was sustained vide order dated 01.09.2021.
18.From the pleadings of the parties and material on record, the following issues were framed vide order dated 11.11.2020 as under:
1. Whether the plaintiffs are entitled to recovery of Rs, 33,04,205/-, as prayed for? OPP.
2. Whether the plaintiffs are entitled to interest, if so, at what rate and for which period? OPP
3. Relief
19.Two additional issues were framed vide order dated 29.10.2021 on the directions of the Hon'ble High Court of Delhi dated 01.09.2021, which are as under:
1. Whether the Court does not have the jurisdiction to try and entertain the present suit? OPD
2. Whether the Defendant No. 1 was not a CS DJ NO. 8047/2016 Page No. 9 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 10 :- proper party to the suit? OPD-1
20.Plaintiffs in support of their case examined PW-1 Sh.
Kamal Kant who has tendered his evidence by way of affidavit as Ex. PW-1/A. He has proved the Power of Attorney dated 12.04.2021 and Board Resolution collectively as Ex. PW-1/1-A. He also proved the Memorandum & Articles of Association and Certificate of Incorporation of the Plaintiffs No. 2 & 3 collectively as Ex. PW-1/1. He also tendered photocopies of Proforma Invoices as Mark PW-1/2 and Mark PW-1/3 respectively and photocopies of emails as Mark PW-1/4 to Mark PW- 1/17 respectively. He proved the Legal Notice dated 28.05.2015 as Ex. PW-1/18 and its reply dated 12.09.2015 as Ex. PW-1/20.
21.Ld. Counsel for the Defendants No. 1 & 2 sought adjournment for cross-examination of PW-1 Sh. Kamal Kant, but thereafter failed to appear before the Court and were proceeded ex-parte vide order dated 01.12.2021.
22.Ld. Counsel for the plaintiff has submitted the written arguments wherein it is submitted that as per the documents the goods were to be supplied in Delhi and, therefore, this Court has the territorial jurisdiction to entertain the present suit. It is further submitted that the unchallenged and consistent testimony of the PW-1 Sh. Kamal Kant proves the Power of Attorney dated 12.04.2021 and Board Resolution in his favour, collectively as Ex. PW-1/1-A and the documents as Ex. PW-1/1 to Ex. PW-1/21. It is further submitted that the CS DJ NO. 8047/2016 Page No. 10 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 11 :- counsel for the defendants despite given opportunity has failed to cross-examine PW-1 Sh. Kamal Kant and the defendants were eventually proceeded ex-parte. The defendant No. 3 Sh. Amit Taneja, who was the mediator between the plaintiff and the defendants No.1 & 2, had admitted in his written statement that plaintiff had facilitated the transfers between the plaintiffs and defendant No. 2 and had also admitted the liability in the sum of USD 15,200 (calculated to Rs. 9,88,000/- at that time and has now increased to Rs. 11,40,000/-) in the various emails vide Ex. PW-1/13, Ex. PW-1/14 and Ex. PW-1/17. Furthermore, the other claim of the plaintiffs for USD 12557 (calculated to Rs. 8,16,205/- at that time and now increased to Rs. 9,41,775/-) is concerned, the material was not supplied on time and was defective because of which it could not be utilised and plaintiffs have suffered total loss of business along with mental harassment. The case of the plaintiffs stands proved from the email conversations which have been duly proved. It is further submitted that the testimony of PW-1 Sh. Kamal Kant stands fully corroborated by the documents duly proved and plaintiffs are entitled to the decree, as claimed.
23.I have heard the arguments and perused the record. My issue-wise findings are as under:
CS DJ NO. 8047/2016 Page No. 11 of 25Anil Kanodia & Others vs. Lars Villing & Another -: 12 :- FINDINGS ON ISSUE NO. 1:
Whether the plaintiffs are entitled to recovery of Rs. 33,04,205/-, as prayed for? OPP
24.Before going into the merits of the claim for recovery of Rs. 33,04,205/- along with interest @ 18% per annum, it is pertinent to consider if there is mis-joinder of the cause of action.
25.PW-1 Sh. Kamal Kant has deposed that Plaintiff No. 2 Sumridhi Aluminium Pvt. Ltd. (SAPL) is the sister concern of Plaintiff No. 3 Sumridhi Recycling Pvt. Ltd. (SRPL) and they both are dealing in manufacture, buy, sale, exchange alter, improve etc. and to import or export or otherwise dealing Metal Scraps etc. and alloy. He has further deposed that these two Companies conduct business of trading in the metal scrap of different grade and that it was well within the knowledge of the defendants that in case of breach in service and negligence, both the Companies would be directly affected. The SRPL virtually trades metals for the SAPL and a Trust has been created between the SRPL and SAPL. On account of these facts and circumstances, SRPL and SAPL duly qualified to become joint plaintiffs to claim their losses and damages against the defendants.
26.PW-1 Sh. Kamal Kant has proved the Memorandum & Articles of Association and Certificate of Incorporation of the Plaintiffs No. 2 & 3 collectively as Ex. PW-1/1.
27.From the perusal of Memorandum & Articles of Association and Certificate of Incorporation of the CS DJ NO. 8047/2016 Page No. 12 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 13 :- Plaintiffs No. 2 & 3 Ex. PW-1/1 collectively, it is evident that these two Companies are separate entity. Plaintiff No. 1 is the Director. Merely because Plaintiff No. 1 Sh. Anil Kanodia is the Director in Plaintiff No. 2 as well as Plaintiff No. 3, would not make the two Companies as one. The Company Law clearly provides that each company as a separate entity which can sue and be sued in its own independent name. The two Companies may be supporting each other in their business transactions and they may be dealing with in metal scrap, but the law recognises them as two separate entities.
28.In this context, it is pertinent to mention that PW-1 Sh. Kamal Kant himself has deposed that Proforma Invoice bearing Contract No. 14115168 dated 31.10.2014 (Mark PW-1/2) was entered into between the SRPL i.e. Plaintiff No. 3 with the Defendant No. 2 and Met Globe India (P) Ltd. in respect of Aluminum Scrap Zorba.
29.The other cause of action rests on another transaction in respect of Contract No. 15030456 dated 05.03.2015 in respect of Aluminum Scrap Tread entered into between the Plaintiff No. 2 and Defendants No. 1 & 2 against which advance sum of Rs. 9,88,000/- was given on 05.03.2015. The second transaction between the Plaintiff No. 2 and the Defendants No. 1 & 2 is in no way connected to the Contract dated 31.10.2014 between the Plaintiff No. 3 and Defendants No. 1 & 2. Both are not only two independent contracts but also are in respect of different material; while one is in respect of Aluminum Scrap Zorba and other is in CS DJ NO. 8047/2016 Page No. 13 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 14 :- respect of Aluminum Scrap Tread.
30.It is quite evident not only from the averments made in the plaint but also from the documents relied upon by the plaintiffs and the evidence of PW-1 Sh. Kamal Kant that two separate transactions namely one dated 31.10.2014 and other dated 05.03.2015 were entered into between different parties which are in no way connected with each other, giving rise to independent cause of action in favour of plaintiff no.2&3 respectively.
31.The question which arises is whether the plaintiffs could file a joint plaint or the joinder of two independent contracts between different parties makes it a case of misjoinder of parties and cause of action. The consequence of misjoinder of parties under Order 1 and misjoinder of cause of action under Order 2 C.P.C. was considered by Apex Court in Prem Lala Nahata vs. Chandi Prasad (2007 (1) KLT 910) . It was observed that Order I deals with parties to a suit and provides who may be joined as plaintiffs and who may be joined as defendants. It also deals with the power of the Court to direct the plaintiffs either to elect with reference to a particular plaintiff or a particular defendant or to order separate trials in respect of the parties misjoined as plaintiffs or defendants. It also gives power to the Court to pronounce judgment for or against one of the parties from among the parties who have joined together or who are sued together. The Code also gives power to the Court to substitute the correct person as a plaintiff or add parties or strike out parties as plaintiffs or CS DJ NO. 8047/2016 Page No. 14 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 15 :- defendants, at any stage, if it is found necessary.
32.It was further observed that Order II deals with frame of suits. It provides that every suit shall be framed as far as practicable so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. It is also insisted that every suit shall include the whole of the claim that a plaintiff is entitled to make in respect of its subject matter. The plaintiff may unite in the same suit several causes of action against the same defendant and plaintiffs having causes of action in which they are jointly interested against the same defendant, may unite such causes of action in the same suit. The objection on the ground of misjoinder of causes of action should be taken at the earliest opportunity. It also enables the Court, where it appears to the Court that the joinder of causes of action may embarrass or delay the trial or otherwise cause inconvenience, to order separate trials or to make such other order as may be expedient in the interests of justice.
33.Thus, in a case where a plaint suffers from the defect of misjoinder of parties or misjoinder of causes of action either in terms of Order I Rule 1 and Rule 3 on the one hand, or Order II Rule 3 on the other, the Code itself indicates that the perceived defect does not make the suit one barred by law or liable to rejection. This is clear from Rules 3A, 4 and 5 of Order I of the Code, and this is emphasized by Rule 9 of Order I of the Code which provides that no suit shall be defeated by reason of non-
CS DJ NO. 8047/2016 Page No. 15 of 25Anil Kanodia & Others vs. Lars Villing & Another -: 16 :- joinder or misjoinder of parties and the court may in either case deal with the matter in controversy so far as it regards the rights and interests of the parties actually before it.
34.Order II deals with the framing of a suit and Rule 3 provides that save as otherwise provided, a plaintiff may unite in the same suit several causes of actions against the same defendant and any plaintiffs having causes of actions in which they are jointly interested against the same defendant may unite such causes of action in the same suit. Rule 6 enables the Court to order separate trials even in a case of misjoinder of causes of action in a plaint filed.
35.It was finally concluded in Premlata (SUPRA) that these provisions with particular reference to the Rules in Order I and Order II of the Code, make it clear that an objection of misjoinder of plaintiffs or misjoinder of causes of action, is a procedural objection and it is not a bar to the entertaining of the suit or the trial and final disposal of the suit. The Court has the liberty even to treat the plaint in such a case as relating to two suits and try and dispose them off on that basis.
36. It is thus clear that the case of the plaintiffs is not liable to be dismissed on account of mis-joinder of cause of action and parties.
37.Now coming to the merits of the case. The facts have been succinctly mentioned in the Legal Notice dated 28.05.2015 Ex. PW-1/18 wherein it has been explained that there are two transactions in respect of two claims i.e. one is in respect of Aluminum Scrap Zorba that have been supplied CS DJ NO. 8047/2016 Page No. 16 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 17 :- to the plaintiff No.3 and second is in respect of refund of the advance amount given by plaintiff no.2 for supply of 50 MT of Aluminum Scrap Tread. The two transactions are namely:
i) Sales Contract bearing Customer No. 20007539, Contract No. 14115168 dated 31.10.2014 between Plaintiff No. 3 SRPL and Defendants No. 1 &2
ii) Proforma Invoice bearing Customer No. 20007539-20, Receipt No. 1451000565 dated 05.03.2015 between Plaintiff No. 2 SAPL and Defendants No. 1 & 2:
I) Sales Contract bearing Customer No. 20007539, Contract No. 14115168 dated 31.10.2014 between Plaintiff No. 3 SRPL and Defendants No. 1 & 2:
38.PW-1 Sh. Kamal Kant has deposed that Plaintiff No. 3 SRPL entered into a contract with the Defendants No. 1 & 2 vide Sales Contract bearing Customer No. 20007539, Contract No. 14115168 dated 31.10.2014 Mark PW-1/3 and placed an order for 50 MT (2X20') of Aluminum Scrap Zorba at the unit price of USD 1,640/TO. He has further deposed that pursuant to this contract, the defendants sent completely defective material which was altogether of a different grade and was full of dust and refuse about which it came to know on offloading it. He further deposed that the plaintiffs found that only 20% was of cast aluminum and rest was merely shredded flake aluminum quality, which was of no value. It has been explained that when this discrepancy was pointed out to CS DJ NO. 8047/2016 Page No. 17 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 18 :- the defendants vide emails dated 10.04.2015, 13.04.2015 and 20.04.2015, it was promised that shortcomings would be remedied in the second lot of the consignment.
However, the second lot proved to be worse than the first one and the material received was not of the category that was represented.
39.The case of the plaintiffs is that against this contract dated 31.10.2014, the material was supplied in two lots, but it was not of the specified category. The onus was on the plaintiffs to establish that the goods supplied were not of requisite quality. Reliance has been placed on various emails Mark PW-1/4 to Mark PW-1/17, which were not supported by a Certificate under Section 65-B of the Indian Evidence Act and has not been proved in accordance with law. Even if these emails are considered they have been addressed to the Defendants No. 1 Sh. Lars Villing and Defendant No. 3 Sh. Amit Taneja, but Defendant No. 1 Sh. Lars Villing never responded to any of the emails and responses were from Sh. Amit Taneja. Whatever may have been communicated between the plaintiffs and Sh. Amit Taneja, cannot be held binding on the Defendants No. 1 & 2 as defendant No. 3 has not been shown to be authorized on behalf of Defendant No.1&2. As noted in written statement of Defendant No. 1, only he was the authorized representative of the Defendant No. 2. The defendant No. 3 had no privity of contract and had no authority to bind the defendants No. 1 & 2 in any manner. Even otherwise some emails dated 27.05.2015 (Mark PW-
CS DJ NO. 8047/2016 Page No. 18 of 25Anil Kanodia & Others vs. Lars Villing & Another -: 19 :- 1/5), dated 03.06.2015 (Mark PW-1/7), dated 10.06.2016 (Mark PW-1/9) and dated 31.07.2015 (Mark PW-1/13) have been produced by PW-1 Sh. Kamal Kant which were written by defendant No. 1 Sh. Lars Villing. The replies to the emails have been sent for and on behalf of plaintiffs. The first and foremost, as already noted above, there is no Certificate under Section 65-B of the Indian Evidence Act supporting these emails and the same have not been proved in accordance with law. Even otherwise, in these emails defendant No. 1 has categorically denied the claim of the plaintiffs that the goods supplied were not of specified quality. The plaintiffs have failed to prove these emails addressed by the defendant No. 1 and has also not lead any evidence about the quality of the goods being not accordingly to the specified procedure.
40.Furthermore, the onus was on the plaintiffs to prove that the goods supplied were different from the quality of goods that were ordered, which they have not been able to discharge. The plaintiffs have failed to lead any cogent evidence either by way of any documents or admissions of defendants or any independent evidence to prove that the goods supplied under the Contract No. 14115168 dated 31.10.2014 was of inferior quality resulting in loss to them, which has been quantified as Rs. 8,16,205/- (USD 12557). Plaintiffs have not been able to prove their entitlement for recovery under this contract.
CS DJ NO. 8047/2016 Page No. 19 of 25Anil Kanodia & Others vs. Lars Villing & Another -: 20 :- II) Proforma Invoice bearing Customer No. 20007539-20, Receipt No. 1451000565 dated 05.03.2015 between Plaintiff No. 2 SAPL and Defendants No. 1 & 2:
41.The circumstances for continuing to do business and to place further Order with Defendant No. 2 despite first unsatisfactory dealing has been explained by PW-1 Sh.
Kamal Kant who has deposed that when the plaintiffs started raising hue and cry and complained to the defendants about the low quality of goods supplied under the first contract, defendants promised that the entire issue would be resolved and unless they continued with the Business Orders nothing would be done. Plaintiffs were thus left with no choice but to enter into the second transaction.
42.The second transaction pertains to Proforma Invoice bearing Customer No. 20007539-20, Receipt No. 1451000565 dated 05.03.2015. PW-1 Sh. Kamal Kant has deposed that Plaintiff No. 2 SAPL entered into this contract dated 05.03.2015 with the Defendants No. 1 & 2 vide which the Plaintiff No. 2 SAPL placed an order for 50 MT of Aluminum Scrap Tread as per ISRI a t the unit price of USD 1,520/TO for which an advance amount of USD 15,200 equivalent to Rs 9,88,000/- were paid despite which no goods were supplied. This document, though filed on behalf of the plaintiffs, but has not been exhibited. However, being a document filed and relied by the defendant it can be read in evidence against him.
CS DJ NO. 8047/2016 Page No. 20 of 25Anil Kanodia & Others vs. Lars Villing & Another -: 21 :-
43.The onus was on the plaintiffs to prove that pursuant to the Contract dated 05.03.2015; USD 15,200 was given to the defendants. However, there is no proof of the advance amount having been given to the defendants. Neither the proforma Invoice nor the payment has been proved by the Plaintiffs.
44.The only documents proved are the copies of various emails Mark PW-1/4 to Mark PW-1/17. As already noted above these have not been proved in accordance with law and even otherwise none of the emails have been responded by the Defendants No. 1 for and on behalf of Defendants No. 2. The onus was on the plaintiffs to prove the advance that was given to the Defendant No. 2, which they have failed to discharge.
45.It is also pertinent to note that the entire case of the plaintiffs was built around Sh. Amit Taneja, whose Company Met Globe India (P) Ltd was an agent or mediator between the plaintiffs and the Defendants No. 1 & 2 and had facilitated the transactions. Sh. Amit Taneja, who had been impleaded as Defendant No. 3 in his personal capacity, was deleted from the array of parties vide order dated 24.09.2020, as being neither a necessary nor proper party to the present suit. Sh. Amit Taneja may have been a competent witness to depose about the entire transactions and prove the case of the plaintiffs. However, Sh. Amit Taneja has not been cited or produced as a witness.
CS DJ NO. 8047/2016 Page No. 21 of 25Anil Kanodia & Others vs. Lars Villing & Another -: 22 :-
46.Plaintiffs have not been able to prove that they are entitled to recovery of Rs. 9,88,000/-.
DAMAGES TOWARDS MENTAL HARASSMENT IN THE SUM OF RS.15,00,000/-:
47.Plaintiffs have also claimed Rs. 15 lacs towards mental harassment, but in view of above discussions, plaintiffs are held not entitled for Rs. 15 lacs, as claimed.
48.The plaintiff has not been able to prove that he is entitled to recovery of Rs. 33,04,205/-.
Issue No. 1 is decided against the plaintiffs.
FINDINGS ON ISSUE NO. 2:
Whether the plaintiffs are entitled to interest, if so, at what rate and for which period? OPP
49.In view of my findings on Issue No. 1, plaintiffs are not entitled for any interest, as claimed for. Issue No. 2 is decided against the plaintiffs.
FINDINGS ON ADDITIONAL ISSUE NO. 1:
Whether the Court does not have the jurisdiction to try and entertain the present suit? OPD
50.Defendant No. 1 Sh. Lars Villing in his letter dated 28.09.2016 to the Ld. Trial Court has informed that he is 100% employed with the Defendant No. 2 and handle the export business to India and informed that all further communications be done with him. He has taken the objection that this Court has no territorial jurisdiction to try CS DJ NO. 8047/2016 Page No. 22 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 23 :- the matter as the jurisdiction was of Federal Republic of Germany only.
51.However, the Defendant No. 2 Alba Metall Nord GmbH has failed to contest or prove the terms of the contract wherein exclusive jurisdiction was conferred on the Courts of Germany. Moreover, it has been proved by the plaintiffs that the goods were to be delivered and in fact were delivered in India.
52.The payments of entire goods under the two contracts were also made from India and also the negotiations between the parties for the contract have taken place in India. Since part cause of action arose in Delhi, this Court has the territorial jurisdiction to entertain the present suit. The Additional Issue No. 1 is decided in favour of the plaintiffs and against the defendants.
FINDINGS ON ADDITIONAL ISSUE NO. 2:
Whether The Defendant No. 1 was not a proper party to the suit? OPD-1
53.Defendant No. 1 Sh. Lars Villing in his letter dated 28.09.2016 had informed that he being the employee of the Defendant No. 2 is fully authorised to deal with the plaintiffs for and on behalf of Defendant No. 2. The application under Order 7 Rule 11 CPC filed on behalf of the Defendant No. 1 was dismissed vide order dated 24.09.2020 against which Review Petition was preferred before the Hon'ble High Court of Delhi and the said order CS DJ NO. 8047/2016 Page No. 23 of 25 Anil Kanodia & Others vs. Lars Villing & Another -: 24 :- was upheld vide order dated 01.09.2021.
54.During the course of arguments before Hon'ble High Court, Ld. Counsel for the Defendant No. 1 had submitted that Sh. Lars Villing was an employee and serving the Company of the Defendant No. 2 between June, 2012 to 31.12.2012 and from January, 2015 to 31.05.2019. However, he has stopped working for the Defendant No. 2 Company and Certificate of employment was submitted before the Hon'ble High Court of Delhi. It was observed in the Order that the Certificate was not before the Ld. Trial Court and directed that the issues to be framed in this regard to be decided after recording the evidence.
55.Defendant No. 1 Sh. Lars Villing had placed on record before Hon'ble High Court a Certificate of employment to show that he was no longer in the employment of the Company of the Defendant No. 2, but Defendants No. 1 & 2 both failed to appear in the Court on 01.12.2021 and hence were proceeded ex-parte. No Certificate of employment has been produced to show that the Defendant No. 1 ceased to be in the employment of the Defendant No. 2, who had been negotiating on behalf of the Defendant No. 2. Hence, it is held that Defendant No. 1 Sh. Lars Villing was a proper party in the present suit, even though no relief was claimed against him. The Additional Issue No. 2 is decided in favour of the plaintiffs and against the defendants.
CS DJ NO. 8047/2016 Page No. 24 of 25Anil Kanodia & Others vs. Lars Villing & Another -: 25 :- RELIEF:
56.In view of my findings on the above issues, the Suit of the Plaintiffs is hereby dismissed. Parties to bear their own cost.
57.Decree Sheet be prepared accordingly.
58.File be consigned to Record Room.
Announced in the open (NEENA BANSAL KRISHNA) Court on 10.01.2022 Principal District & Sessions Judge (KSR) South East, Saket Courts, New Delhi CS DJ NO. 8047/2016 Page No. 25 of 25 Anil Kanodia & Others vs. Lars Villing & Another