Delhi District Court
M/S Magnum Destination Management Pvt. ... vs M/S De Grande Sports Pvt. Ltd on 16 November, 2024
IN THE COURT OF DR. NEERA BHARIHOKE
DISTRICT JUDGE (COMMERCIAL COURT)-06
SOUTH EAST, SAKET COURTS,
NEW DELHI
CNR No. DLSE01-004121-2020
CS (Comm) 342/2020
M/s Magnum Destination Management Pvt. Ltd.
Having its office at:
Suite No. 522, Tower B, Jasola,
New Delhi-110025
Through its authorized representative/
Director Mr. Afzal Ahmed ...Plaintiff
VERSUS
1. M/s De Grande Sports Pvt. Ltd.
C/o 4th Floor, HDIL Towers,
Anant Kanekar Marg, Bandra East,
Mumbai 400051
Maharashtra
Through its Authorized Representative/Director
Email: [email protected]
2. Mr. Atul Madhukar Pande,
Director
R/o Flat No. 401,
Sai Sankalp Apartment,
Alandi Road, behind Asha Empire Dighi,
Pune City, Maharashtra - 411015
Email: [email protected]
Mob: +91-9923364155
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2024.11.16
17:08:46
+0530
CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 1 of 27
3. Mr. Gaurav Modwal
C/o F-2/203, Poonam Kunj,
Poonam Nagar, Mahakali Caves Road,
Andheri (East),
Mumbai-400093, Maharashtra
Email: [email protected]
4. Hyderabad Football Club
C/o GMC Balayogi Athletic Stadium,
Gachibowli, Behind IIIT-Hyderabad,
Hyderabad, Telangana 500032
Through its Authorized Representative/Director
5. Mr. Varun Tripuraneni
R/o No. 13, North Avenue,
Kesavaperumalpuram,
R A Puram,
Chennai-600028,
Tamil Nadu
Email: [email protected]
Mob: 9952967018
6. Mr. Vijay Madduri
R/o Aditya Elite Apartments BS,
Maktha Begumpet, Secunderabad,
Hyderabad, Telangana - 500016
Email: [email protected] Mob: 9177110092
7. Mr. Rana Dagabutti
R/o Film Nagar, Hyderabad,
Telangana, India
Email: [email protected]
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2024.11.16
17:08:54
+0530
CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 2 of 27
8. Mr. Thasulu Mani,
Director
C/o 4th Floor, HDIL Towers,
Anant Kanekar Marg,
Bandra East,
Mumbai 400051, Maharashtra
9. Mr. Santosh Acharya Krishna,
Director
C/o 4th Floor, HDIL Towers,
Anant Kanekar Marg,
Bandra East,
Mumbai 400051, Maharashtra
....Defendants
Date of institution of the suit : 23.10.2020
Date on which judgment was reserved : 26.10.2024
Date of pronouncement of Judgment : 16.11.2024
JUDGMENT
SUIT FOR RECOVERY
1. By way of this judgment, I shall decide the suit of the Plaintiff filed for recovery of Rs.26,66,663/- alongwith interest.
CASE OF THE PLAINTIFF AS SET UP IN THE PLAINT
2. Brief facts of the case as stated by the Plaintiff in the plaint are that:-
Digitally signed by NEERA BHARIHOKENEERA BHARIHOKE Date:
2024.11.16 17:09:00 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 3 of 27 i. The Plaintiff is a Company registered under Companies Act, 1956 and the present suit has been filed through Shri Afzal Ahmed, Director of the Plaintiff company, who is duly authorized by Authorization Letter dated 15.01.2020.
ii. The Defendants were the clients of Plaintiff and availed the services of Plaintiff multiple times. Defendant No.4 was a Football Club which was owned by Defendant No.1. Defendant No. 2, 3, 8 & 9 were the Directors/Authorized Representatives of Defendant No.1 Company. Whereas, Defendant No.5, 6 & 7 were the owners of Defendant No.4 Football Club.
iii. Defendants availed the services of Plaintiff for providing flight tickets to Defendants, their players and their club officials. At the time of availing the services of Plaintiff, an agreement was also executed between Plaintiff and Defendants. As per the said agreement, the payment was to be made by Defendants on bi- monthly basis.
iv. The Plaintiff had always been efficient and diligent in performing its part of obligation and there had not been any complaint from Defendants qua the services provided by the Plaintiff, which clearly reflected that Defendants had always been satisfied with the services provided by the Defendants.
v. Accordingly, after completion of its obligation, Plaintiff issued Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date: 2024.11.16 17:09:11 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 4 of 27 its invoices and requested Defendants to fulfill its obligation by paying the total invoice amount of Rs.65,07,892/-. Out of total invoiced amount of Rs.65,07,892/-, Defendants made only part payment of Rs.38,41,229/- to Plaintiff and categorically assured the Plaintiff that they would make the remaining payment of Rs.26,66,663/- within a short period of time.
vi. However, Defendants did not make the balance payment to Plaintiff. Defendants stopped replying to Plaintiff's telephonic call and emails.
vii. Defendants through an e-mail dated 11.02.2020 admitted their liability towards the Plaintiff and assured the Plaintiff that they would make the payment within a particular time frame but Defendants failed to honour their commitments.
viii.Plaintiff had been regularly following up with Defendants for payment of balance admitted amount, but Defendants were avoiding payment of their legal liability towards the Plaintiff on one pretext or other.
ix. Plaintiff sent a legal notice dated 16.05.2020 to Defendant Nos.
1 to 7 to pay the remaining admitted sum of Rs.26,66,663/-
alongwith interest @24% p.a. within a period of 15 days from the receipt of said notice. The said legal notice dated Digitally signed by 16.05.2020 had been sent through Speed Post, Courier, e-mail NEERA NEERA BHARIHOKE BHARIHOKE Date:
2024.11.16 17:09:17 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 5 of 27 and Whatsapp. The legal notice had been served upon and received by the Defendant Nos. 1 to 7 and had been duly acknowledged by the Defendants. But despite service of legal notice 16.05.2020, Defendant Nos. 1 to 7 failed to repay the said admitted amount to the Plaintiff.
x. A reminder notice dated 12.06.2020 was sent to Defendant Nos.1 to 7 to pay the remaining admitted sum of Rs.26,66,663/- alongwith interest @24% p.a. within a period of 3 days from the receipt of said reminder notice. The said reminder notice dated 12.06.2020 had been sent through Speed Post, Courier, e-mail and whatsup. The reminder notice dated 12.06.2020 had also been served upon the Defendant Nos.1 to 7 and had been duly acknowledged by the Defendants. But despite service of reminder notice dated 12.06.2020, Defendant Nos. 1 to 7 failed to repay the said amount to the Plaintiff.
xi. The Plaintiff preferred a Pre-litigation/Pre-Institution Mediation before the Competent Authority, i.e. SEDLSA, on 15.09.2020, however Defendants did not appear before the Competent Authority. Furthermore, the Non-Starter Report for the Pre-Institution Mediation was issued by the Competent Authority, SEDLSA, dated 15.12.2020.
3. Hence the present suit has been filed.
Digitally signed by NEERANEERA BHARIHOKE
BHARIHOKE Date:
2024.11.16
17:09:22 +0530
CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 6 of 27
CASE OF THE DEFENDANTS
4. Written Statement has been filed on behalf of Defendants no. 1 only and no Written Statement had been filed by Defendant no. 2 to 9. In their Written Statement, the Defendants have taken the plea that the Plaintiff has filed a vexatious suit, and the suit is barred under law. The Defendants have also taken an objection that this court lacks territorial jurisdiction to try the present suit.
5. In their Written Statement, the Defendants have also submitted that in the present case, all the Defendants except Defendant no.1 are neither the necessary parties nor proper parties to the present suit. Therefore, the Defendants have taken preliminary objection of the suit being bad for misjoinder of parties as well as for lack of territorial jurisdiction.
6. In its para-wise reply on merits, the Defendants have admitted that it availed some services of Plaintiff for providing flight tickets but denied that any amount was due to be paid to the Plaintiff by the Defendants. The Defendants have denied all the remaining submissions made by the Plaintiff and have prayed for dismissal of the present suit.
7. The Written Statement has been filed on behalf of Defendants no. 1 only and that too on 25.10.2021 which is much beyond the statutory period of limitation and beyond 120 days of entering Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date: 2024.11.16 17:09:28 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 7 of 27 appearance before this Court as can be seen from order dated 17.04.2021 wherein it is recorded that learned Counsel for Defendant submitted that Defendant no.1 was never served, however, he was putting appearance even for Defendant no.1. However, no objection seems to have been taken by the Plaintiff or my learned for the delay in filing the Written Statement by Defendant no.1 or by my learned Predecessor.
8. The Defendants had filed an application under Order VII Rule 11 CPC on the ground of lack of jurisdiction of this court and the same was dismissed vide a speaking order dated 25.11.2022.
9. The application of the Defendants no. 2 to 9 filed under Order I Rule 10 CPC was allowed vide order dated 12.01.2024 and it was also observed by my learned Predecessor that Defendant no. 1 shall be referred to as the Defendant.
10. Vide order dated 04.05.2024, the application of the Plaintiff under Order XIII A CPC, after hearing arguments, was disposed of on suggestion of my learned Predecessor that the parties may go for trial and the trial will be conducted in a time bound manner.
11. On the same day, issues were framed as:-
i. Whether there was an agreement between the Plaintiff and the Defendant and whether it is valid and enforceable in NEERA Digitally signed by NEERA BHARIHOKE respect of the present suit? OPP BHARIHOKE Date:
2024.11.16 17:09:34 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 8 of 27 ii. Whether the Plaintiff provided services to the Defendant against the invoices filed in the present suit and whether the invoices were delivered to the Defendant? OPP iii. Whether the Defendant is liable to pay to the Plaintiff Rs.
26,66,663/- towards principal outstanding as claimed? OPP iv. Whether the Plaintiff is entitled to pendente-lite and future interest. If yes, on what amount and at what rate? OPP v. Whether the Plaintiff is entitled to cost of the suit? If yes, the quantum? OPP vi. Relief.
PLAINTIFF'S EVIDENCE
12. Plaintiff has examined one witness i.e. PW-1 Shri Afzal Ahmed. He presented his evidence by way of affidavit vide Ex. PW-1/A. He reiterated the contents of the plaint and relied upon the following documents: -
a) The Original Authorization Letter is Ex. PW-1/1.
b) Agreement executed between the Plaintiff and Defendant is Ex. PW-1/2.
c) Incorporation Certificate of the Plaintiff is Ex. PW-1/3.
d) Incorporation Certificate of Defendant No.1 Company is Ex.
PW-1/4.
Digitally signed by NEERA BHARIHOKENEERA BHARIHOKE Date:
2024.11.16 17:09:39 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 9 of 27
e) Printout of Master Data of Defendant No.1 Company from MCA is Ex. PW-1/5.
f) Printout from the official website of Defendant No.4 is Ex.
PW-1/6.
g) Printout of relevant page of Bank Statement of Plaintiff Company is Ex. PW-1/7.
h) Printout of e-mail dated 11.02.2020 is Ex. PW-1/8.
i) Screenshot of various SMS sent by Defendant No.5 is Ex.
PW-1/9.
j) Copy of all the invoices raised by the Plaintiff upon the Defendants and sent via e-mail is Ex. PW-1/10.
k) Office copy of legal notice dated 16.05.2020 alongwith its original POD, internet tracking report and its e-mail is Ex. PW-1/11.
l) Office copy of first reminder dated 12.06.2020 alongwith its original POD, internet, tracking report and its email is Ex. PW-1/12.
m) Affidavit under Order XI CPC is Ex. PW-1/13.
n) Certificate under Section 65-B Evidence Act is Ex.
PW-1/14.
PW-1 was cross examined by learned Counsel for Defendant and discharged on 31.05.2024. On the same day, Plaintiff's Evidence was closed vide separate statement given by Shri Afzal Ahmed, Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2024.11.16 17:09:45 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 10 of 27 Director of Plaintiff and the matter was listed for Defendant Evidence.
DEFENDANT'S EVIDENCE
13. Defendant has not led any evidence as learned Counsel for Defendant submitted on instructions that Defendant does not wish to lead Defendant Evidence and Defendant's Evidence was closed on the statement of learned Counsel for Defendant on 18.07.2024 and the matter was listed for final arguments.
FINAL ARGUMENTS
14. I have heard the submissions of learned Counsel for the parties and have carefully gone through the record.
15. Learned Counsel for Plaintiff argued that the Plaintiff has filed the present suit seeking recovery of Rs.26,66,663/- alongwith interest. He argued that Plaintiff is engaged in the business of services related to international, domestic travel and hotel reservations and that Defendant is one of the clients of Plaintiff and it executed an agreement of services of Plaintiff. As per agreement, the settlement of accounts was to be made on a bimonthly basis. He further argued that after completion of its obligation, Plaintiff raised invoices to the tune of Rs.65,07,892/- to the Defendant and that the Defendant made part payment of Rs.38,41,229/- to the Digitally Plaintiff and the present suit has been filed for the remaining sum signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2024.11.16 17:09:51 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 11 of 27 of Rs.26,66,663/- which is still due to be paid by the Defendant to the Plaintiff. He argued that the Defendant has sent the mails to the Plaintiff where the Defendant has admitted its liability for the suit amount and that the Plaintiff has also annexed/exhibited the WhatsApp chat of the Plaintiff with the Defendant where Defendant had given repeated assurances to the Plaintiff that its outstanding dues would be paid by the Defendant.
16. Learned Counsel for Defendant argued that the Plaintiff has been unable to prove any of the issues framed by in the present suit. It was further argued that the WhatsApp chat as well as the emails placed on record and relied upon by the Plaintiff are the communications between the Director of the Plaintiff, namely Shri Afzal Ahmed, and Shri Varun Tripuraneni who was impleaded as Defendant no. 5 and was subsequently deleted from the array of Defendants vide order dated 12.01.2024. He also argued that even otherwise Varun Tripuraneni has got nothing to do with the Defendant company.
17. It was argued that the Plaintiff has relied upon the brochure of Plaintiff as an agreement which has been exhibited as Ex.PW-1/2 and that it is only an invitation to offer, and the element of acceptance is missing. It has also been argued on behalf of Defendant that allegedly Plaintiff sent invoices to Defendant and that all the invoices placed on record were photocopies and there is no proof of delivery of invoices or the mode through which the Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2024.11.16 17:09:57 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 12 of 27 invoices were sent. Attention was invited to cross examination of PW-1 when the witness was shown the exhibits, i.e. Ex. PW-1/10, the invoices sent to the Defendant via e-mail and the question was put to the witness if there are any e-mails which the Plaintiff had filed alongwith these invoices and PW-1 stated that he was not sure but probably the same had not been placed on the file. It was further argued by learned Counsel for Defendant that the photocopies of invoices in absence of proof of delivery are unilateral invoices which were never sent to the Defendant. He also argued that the affidavit under section 65-B of Evidence Act cannot be taken into consideration since there is no verification clause in the said affidavit, Ex. PW-1/14 and there is no reference to the handset/mobile no. from which the alleged SMS or WhatsApp chat was extracted. Learned Counsel for Defendant also argued that Ex. PW-1/7, the Bank Statement, is a photocopy and not certified as per provisions of Bankers Books Evidence Act and thus could not be relied upon by the Plaintiff. Learned Counsel for Defendant also argued that this court has no territorial jurisdiction. He prayed for dismissal of the present suit.
18. In rebuttal, learned Counsel for Plaintiff argued that the Defendant has wrongly stated that Varun Tripuraneni has got nothing to do with the Defendant company. Attention was drawn to the fact that Varun Tripuraneni signed the Vakalatnama on behalf of the Defendant. Attention was also drawn to the affidavit of NEERA Varun Tripuraneni in support of the application filed under Order I BHARIHOKE Digitally signed by NEERA BHARIHOKE Date: 2024.11.16 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 13 of 27 17:10:02 +0530 Rule 10 CPC filed for deletion of Varun Tripuraneni who had been impleaded as Defendant no.5 as well as other application filed under Order I rule 10 CPC which was filed on behalf of Defendants no. 2 to 9 for their deletion as well as affidavit filed in support of application filed under Order VII Rule 11 CPC. Learned Counsel for Plaintiff also argued that in the affidavit of admission denial of documents of the Plaintiff filed by the Defendant, in respect of the print out of e-mail dated 11.02.2020 written by Varun Tripuraneni to the Director of Plaintiff, the Defendant has admitted the receipt of the said e-mail as well as admitted its contents but interpretations/inferences drawn by the Plaintiff were denied and that e-mail dated 11.02.2020 contains express admission on part of the Defendant in respect of the Suit amount.
19. As regards the allegation of absence of verification clause in the affidavit filed under section 65 B of Evidence Act, learned Counsel for Plaintiff argued that under the provisions of Section 65B of Evidence Act, the requirement is to file Certificate and not affidavit and Ex. PW-1/4 is a Certificate and not an affidavit and does not require verification. He further argued that the Plaintiff has also filed on record affidavit under Order XI Rule 6(3) CPC In support of electronic record.
20. Learned Counsel for Plaintiff argued that the Defendant also made part payment of Rs.5,00,000/- to the Plaintiff and that Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2024.11.16 17:10:07 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 14 of 27 WhatsApp chat placed on record clearly reflects admissions on part of the Defendant to the Plaintiff regarding the suit amount.
21. As regards the objection of the Defendant in regard to territorial jurisdiction, learned Counsel for Plaintiff argued that objection of territorial jurisdiction has already been decided by this Court vide speaking order dated 25.11.2022 whereby the application of the Defendant filed under Order VII Rule 11 CPC filed on the ground of lack of territorial jurisdiction was dismissed.
22. Learned Counsel for Plaintiff argued that the Plaintiff discharged its onus in regard to the issues framed in the present matter and that the Defendant voluntarily did not lead evidence and that therefore, the Plaintiff has proved its case.
23. It is correct that as regards the objection of the Defendant in regard to territorial jurisdiction, it has already been decided by Learned Predecessor of this Court vide speaking order dated 25.11.2022 whereby the application of the Defendant filed under Order VII Rule 11 CPC filed on the ground of lack of territorial jurisdiction was dismissed.
24. Issue wise findings are given below:
Issue no. 1 "Whether there was an agreement between the Plaintiff and the Defendant and whether it is valid and enforceable in respect of the present suit?
Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
The onus to prove this issue was placed on Plaintiff. 2024.11.16 17:10:13 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 15 of 27
25. The Plaintiff has submitted that Defendants availed the services of Plaintiff for providing flight tickets to Defendants, their players and their club officials. It has also been submitted by the Plaintiff that at the time of availing the service of Plaintiff, an agreement was also executed between Plaintiff and Defendants. Defendant no. 2 to 9 were deleted vide order dated 12.01.2024. Therefore, the submission about execution of agreement is confined to Defendant no. 1 which is now sole Defendant.
26. Defendant in its para-wise reply has admitted that Defendant no.1 had availed some services of Plaintiff for providing flight tickets. However, the fact of execution of the agreement between Plaintiff and Defendant has been denied.
27. PW-1 in his examination in chief has tendered Ex. PW-1/2 and has described the same as an agreement between Plaintiff and Defendant. The Defendant has alleged that Ex. PW-1/2 is the brochure of the Plaintiff and not an agreement. However, it is noticed that the document Ex.PW-1/2 bears the stamp of the Plaintiff as well as Defendant and it also bears the signatures of authorized signatory of Plaintiff as well as Defendant. The document exhibited as Ex. PW-1/2 runs into 3 pages and provides in detail the services provided by the Plaintiff which includes the service of providing flight tickets.
Digitally signed by NEERA BHARIHOKENEERA BHARIHOKE Date:
2024.11.16 17:10:18 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 16 of 27
28. During examination in chief, tendering of Ex. PW-1/2 was objected on the ground of being not stamped. Section 2(e) of Contract Act, 1872 provides that "Every promise and every set of promises, forming the consideration for each other, is an agreement." Under the provisions of Contract Act, 1872, stamping is not a requirement for execution of an agreement and non- stamping does not hit validity of execution of an agreement nor has learned Counsel for Defendant cited any provision in Stamp Act which makes Ex. PW-1/2 invalid or unenforceable on account of non-stamping. PW-1, during his cross examination, volunteered that there was no need for stamping of the document as this was the service agreement. Therefore, the Defendant did not produce anything on record to impinge upon the validity of the agreement contained in Ex. PW-1/2.
29. During his cross examination, PW-1 was put a question whether Ex. PW-1/2 was signed by any of the three directors mentioned on page 32. Page 32 is the Master Data of the Defendant company and has been exhibited as Ex.PW-1/5 and it contains the names of three people as its directors, Atul Madhukar Pande being one of them. PW-1 responded in affirmative and said that it was signed by Shri Atul Pande. Said submission is correct as Ex.PW-1/2 is signed by Shri Atul Pande as signatory of Defendant. No suggestion was given to the witness that signatures of Shri Atul Pande on Ex. PW-1/2 are forged or fabricated or were taken by exercising some fraud or coercion on Shri Atul Pande.
Digitally signed by NEERA BHARIHOKENEERA BHARIHOKE Date:
2024.11.16 17:10:22 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 17 of 27
30. In its affidavit of admission denial of documents of the Plaintiff, the Defendant has not denied the execution of the agreement but has only denied the correctness of the contents of the document. Even otherwise, the Plaintiff has referred to the document Ex. PW-1/2 as an agreement executed between Plaintiff and Defendant in respect of providing flight tickets to Defendants which has been even otherwise admitted by the Defendant in its para-wise reply in the Written Statement. Therefore, in view of non-denial of execution of Ex-PW-1/2 by the Defendant coupled with admission of Defendant that Plaintiff provided flight tickets shows that Ex. PW-1/2 is valid and enforceable in respect of the present suit.
31. Therefore, Plaintiff has proved that there was an agreement between the Plaintiff and the Defendant, and it is valid and enforceable in respect of the present suit. Therefore, issue no. 1 is decided in favour of Plaintiff and against the Defendant and it is held that there was an agreement between the Plaintiff and the Defendant, and it is valid and enforceable in respect of the present suit.
32. Issue no. 2 and issue no. 3 are interconnected and are therefore being taken up together for deciding.
Issue no. 2 Whether the Plaintiff provided services to the Defendant against the invoices filed in the present suit and whether Digitally the invoices were delivered to the Defendant?
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2024.11.16
17:10:28
+0530
CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 18 of 27
Issue no. 3: Whether the Defendant is liable to pay to the Plaintiff Rs. 26,66,663/- towards principal outstanding as claimed?
The onus to prove issue no. 2 and 3 was placed on Plaintiff.
33. As stated above, in para-wise reply in the Written Statement, the Defendant has admitted that it had availed some services of Plaintiff for providing flight tickets. In his examination in chief, PW-1 tendered the copy of all the invoices raised with the Plaintiff upon the Defendants and sent via e-mail as Ex. PW-1/10. Objection was taken on the ground that e-mails by which the invoices were sent are not attached. During his cross examination, a question was put to PW-1 that whether Shri Atul Madhukar Pandey acknowledged debt of Plaintiff in any of his communications placed on record. PW-1 replied that he had asked for all the invoices for audit purposes and all invoices were supplied to him. In response to his reply, a question was put to PW-1 if he had placed on record the documents sent by Shri Atul Madhukar Pandey. PW-1 replied that the document had not been placed on record, but he had brought the same in the court on that date i.e. on the date of his cross-examination. Learned Counsel for Defendant did not ask him any further question about the document which was brought by PW-1 in the court on that date nor was PW-1 asked to place that document on record. Therefore, adverse inference can be drawn against Defendant in terms of section 114 of Evidence Act (section 119 of Bharatiya Sakshya Adhiniyam, 2023).
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2024.11.16
17:10:32
+0530
CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 19 of 27
34. Further PW-1 was shown the copies of the invoices placed on record, Ex. PW-1/10, and PW-1 was put a question if any e-mails were filed alongwith the invoices to which PW-1 replied that he was not sure but probably it had not been placed on the file. He volunteered that he could produce the same. Learned Counsel for Defendant did not ask PW-1 to produce the same. Therefore, adverse inference can be drawn against Defendant in terms of section 114 of Evidence Act (119 of Bharatiya Sakshya Adhiniyam, 2023). PW-1 denied the suggestion that no invoices were sent and therefore the alleged e-mails had not been placed on record. He also denied the suggestion that no services were provided by the Plaintiff against the invoices, Ex. PW-1/10. He also denied the suggestion that the Defendant company never received the invoices.
35. The Defendant has itself admitted in para-wise reply in the Written Statement about having availed the services of ticketing from the Plaintiff. The Defendant has also denied its liability to pay an amount of Rs.26,66,663/- to the Plaintiff and in the same breath, has submitted that no amount was due from the Defendant. In backdrop of these submissions, the reply of the Defendant that it does not owe amount of Rs.26,66,663/- to the Plaintiff is nothing but a bare denial. The Defendant has not brought anything on record to show as to what was the amount which was claimed by the Plaintiff towards providing services of ticketing to Defendant and how and when the payment was made by the Defendant Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2024.11.16 17:10:38 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 20 of 27 towards discharging its liability. Order VIII Rule 5 CPC provides that even a vague or evasive denial may be treated to be an admission in which event the court may pass a decree in favour of the Plaintiff. Similar are the observations of Hon'ble Supreme Court in Gautam Sarup vs Leela Jetly and Ors., 2008 AIR SCW 4113.
36. In terms of section 102 of Evidence Act (section 105 of Bharatiya Sakshya Adhiniyam, 2023), the initial onus is always on the Plaintiff and if Plaintiff discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the Defendant to prove those circumstances, if any, which would disentitle the Plaintiff to the same. However, Defendant did not lead any evidence nor produced any facts or evidence to negate the facts proved by the Plaintiff. Therefore, it is noticed that the Defendant has made a bare denial of the facts, but the denial is not specific but evasive whereas the Plaintiff has proved the averments made in the plaint regarding the invoices, Ex. PW-1/10 in support of its case by preponderance of probabilities.
37. The Plaintiff has produced and proved the WhatsApp chats between the Plaintiff and the Defendant where Shri Varun Tripuraneni on behalf of Defendant had given repeated assurances to the Plaintiff that its outstanding dues would be paid by the Defendant. The Plaintiff has filed a certificate under section 65 B of Evidence Act as well as Certificate under Order XI Rule 6(3) of Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2024.11.16 17:10:42 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 21 of 27 CPC in support of electronic evidence. I concur with learned Counsel for Plaintiff that the Defendant has wrongly stated that Shri Varun Tripuraneni has got nothing to do with the Defendant company. Shri Varun Tripuraneni has signed more than one Vakalatnamas on behalf of the Defendant as well as on behalf of all the erstwhile Defendants prior to their deletion from array of parties. The application filed under Order I Rule 10 CPC for deletion of Shri Varun Tripuraneni who had been impleaded as Defendant no. 5 as well as other application filed under Order I rule 10 CPC which was filed on behalf of Defendants no. 2 to 9 for their deletion are all supported by affidavit of Shri Varun Tripuraneni. The affidavit filed in support of application filed under Order VII Rule 11 CPC is also of Shri Varun Tripuraneni. To mislead this court in his application filed under Order I Rule 10 CPC for his deletion as Defendant no. 5, Shri Varun Tripuraneni has described himself as CEO of Defendant Company and in other application filed under Order I rule 10 CPC which was a common application filed on behalf of Defendants no. 2 to 9 for their deletion, Shri Varun Tripuraneni has not only been denied to be not the Director of Defendant Company but has also been described as its employee. Even in Written Statement, Shri Varun Tripuraneni has been described as its employee. But in all the affidavits, he has been described as its Authorized Signatory. Therefore, the submission of Defendant that Shri Varun Tripuraneni is not authorized to make any statement on behalf of Defendant is nothing but a sham defence.
Digitally
signed by
NEERA
NEERA BHARIHOKE
BHARIHOKE Date:
2024.11.16
17:10:47
+0530
CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 22 of 27
38. Plaintiff has relied on e-mail dated 11.02.2020, Ex. PW-1/8 sent by Shri Varun Tripuraneni as admission of liability of the suit amount by the Defendant owed to the Plaintiff. The said mail reads as:
"From: Varun Tripuraneni[mail to:[email protected]] Sent: 11 February 2020 08:27 To: Magnum Afzal Subject: Pending payment Dear Mr Afzal, Apologies for the delay in sending this email and apologies for the delay totally in settling the pending payments. As i mentioned we are trying our best to sort this ASAP. I understand that Rs 31.66 lakhs is a big amount. My humble request is time for this week and will start clearing from Monday onwards (17th Feb). We will transfer Rs 10 lakhs every Monday (17th Feb, 24th Feb & 2nd March ( The balance Rs 1.66, will adjust in one of the payments We are extremely close to completing the paperwork and hence this request. As i requested above, request your patience and support for a week and this will be done. I promise to try and complete this before the timelines mentioned here.
Thank you.
Best regards, Arun Tripuraneni"
NEERA BHARIHOKE Digitally signed by NEERA BHARIHOKE
39. Therefore, it is noticed that in e-mail dated 11.02.2020 written Date: 2024.11.16 17:10:52 +0530 by Shri Tarun Tripuraneni to Shri Afzal Ahmed, the Authorized CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 23 of 27 Signatory of Plaintiff Company, who has deposed as PW-1 as well, there are clear admissions on part of Defendant of Rs.31.66 Lakhs towards the Plaintiff. It is rather the Plaintiff which, in its fairness, has filed Ex. PW-1/7, its Bank Statement reflecting payment of Rs.5 Lakhs having been made by Defendant to Plaintiff at its HDFC Bank Branch at Jasola on 05.03.2020. However, Defendant has taken an objection which is legally correct that Ex. PW-1/7, i.e. Bank Statement of the Plaintiff, cannot be read into evidence in absence of Certificate under Section 2A of Bankers Book Evidence Act.
40. Even if Ex. PW-1/7 is inadmissible in evidence, deduction of amount reflected in Ex. PW-1/7 from the admitted amount of Rs.31.66 Lakhs in the e-mail dated 11.02.2020, Ex. PW-1/8 makes amount recoverable by the Plaintiff from Defendant to be Rs.26.66 Lakhs and Plaintiff has filed the present suit for Rs.26,66, 663/-.
41. Further, it is noticed that in the affidavit of admission denial of documents of the Plaintiff filed by the Defendant, in respect of the printout of e-mail dated 11.02.2020 written by Shri Varun Tripuraneni to the Director of Plaintiff, the Defendant has admitted the receipt of the said e-mail as well as admitted its contents but interpretations/inferences drawn by the Plaintiffs were denied. However, the language of e-mail dated 11.02.2020 contains express admission on part of the Defendant in respect of the suit amount and no other interpretations/inference flows from it and the Digitally signed by NEERA BHARIHOKE NEERA BHARIHOKE Date:
2024.11.16 17:10:58 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 24 of 27 Defendant has admitted receipt of this mail which was sent by Varun Tripuraneni to Director of the Plaintiff and thus Defendant cannot even plead ignorance of the same.
42. Therefore, even if it is deemed that WhatsApp chat between Shri Varun Tripuraneni and Shri Afzal Ahmed, the Director of Plaintiff Company is not admissible because it has been referred to as SMS messages in place of WhatsApp chat, the Plaintiff has proved its case on basis of admissions contained in the e-mail dated 11.02.2020, Ex. PW-1/8.
43. Therefore, issue no. 2 and 3 are decided in favour of Plaintiff and against the Defendant and it is held that the Plaintiff provided services to the Defendant against the invoices filed in the present suit and the invoices were delivered to the Defendant. It is also held that Defendant is liable to pay to the Plaintiff Rs.26,66,663/- towards principal outstanding as claimed.
Issue no. 4: Whether the Plaintiff is entitled to pendente-lite and future interest. If yes, on what amount and at what rate?
44. The Plaintiff has claimed interest @ 24% p.a. and the invoices also stipulate the same rate of interest for outstanding payments. However, in my considered opinion, the interest at the lending rate of interest of Bank shall serve the ends of justice and therefore Defendant is directed to pay interest on the suit amount @ 9% p.a. to the Plaintiff from the date of demand notice i.e. 12.06.2020 sent Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date:
2024.11.16 17:11:02 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 25 of 27 by the Plaintiff to the Defendant to the date of filing of the suit as well as interest on the suit amount @ 9% p.a. towards pendente lite interest and future interest till the time of realization of suit amount.
Issue no. 5: Whether the Plaintiff is entitled to cost of the suit? If yes, the quantum?
The onus to prove this issue was placed on Plaintiff.
45. The facts of the present suit clearly establish that Plaintiff has suffered badly at the hands of Defendant which availed the facility/services of the Plaintiff and kept on assuring the Plaintiff repeatedly that its payment would be made. However, after making payment in part, the Defendant not only refused to make the payment but denied its liability towards the Plaintiff. Therefore, Defendant is also directed to pay to Plaintiff the cost of the suit which shall include pleader's fee and the other costs on the scale provided under section 35 of the Code of Civil Procedure as substituted by Commercial Courts Act. If the payment is not made within thirty days, the cost shall also carry simple interest @ 6% per annum.
Relief.
46. Therefore, Plaintiff is held entitled to recover from the Defendant an amount of Rs.26,66,663/- alongwith interest on the suit amount @ 9% p.a. from the date of demand notice sent by the Plaintiff to the Defendant i.e. 12.06.2020 to the date of filing of the Digitally signed by NEERA BHARIHOKE NEERA BHARIHOKE Date:
2024.11.16 17:11:09 +0530 CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 26 of 27 suit as well as interest on the suit amount @ 9% p.a. towards pendente lite interest and future interest till the time of realization of suit amount. Cost of the suit is also awarded in favour of the Plaintiff and against the Defendant which shall include pleader's fee and the other costs on the scale provided under section 35 of the Code of Civil Procedure as substituted by Commercial Courts Act. If the payment is not made within thirty days, the cost shall carry simple interest @ 6% per annum.
47. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance. Digitally signed by NEERA BHARIHOKE NEERA BHARIHOKE Date:
Announced in the open 2024.11.16
17:11:14
Court on 16.11.2024
+0530
(Dr. Neera Bharihoke)
District Judge (Commercial Court)-06 South East, Saket Courts, New Delhi 16.11.2024 Certified that this judgment contains 27 pages and each page bears my signatures.
(Dr. Neera Bharihoke)
Digitally
signed by District Judge (Commercial Court)-06
NEERA
NEERA BHARIHOKE
BHARIHOKE Date: South East, Saket Courts, New Delhi
2024.11.16
17:11:17
+0530 16.11.2024
CS (Comm) 342/20 M/s Magnum Destination Management Vs. M/s DE Grande Sports Page 27 of 27