Delhi District Court
Vijay Kumar vs . National Mission For Manuscripts & ... on 29 September, 2014
IN THE COURT OF MS. KADAMBARI AWASTHI, CIVIL JUDGE2 (CENTRAL),
ROOM NO.231, TIS HAZARI COURTS, DELHI.
CS No.458/14
Vijay Kumar Vs. National Mission for Manuscripts & Ors.
Sh. Vijay Kumar
Proprietor of M/s. Vee Jay Computers
248, Sector - III
Sadiq Nagar, New Delhi.
..................... Plaintiff
Versus
1.National Mission for Manuscripts Indra Gandhi National Centre for Arts No. 5, Dr. Rajinder Prasad Road New Delhi 110001.
2. The Ministry of Culture Govt. of India New Delhi Through it Secretary .................... Defendants Date of Institution: 15.09.2008 Date of reserving the judgment: 16.09.2014 Date of Judgment: 29.09.2014 SUIT FOR RECOVERY OF RS.1,47,500/
1. By this order, I shall decide a suit for Recovery of Rs.1,47,500/. CS NO. 458/14 Page No. 1 /30
2. As per the plaint the brief facts are as followed:
2.1. It is submitted that the plaintiff was engaged in the business of trading in computer hardware, software, maintenance, networking, AMC etc. The defendant no. 1 is an institution under the defendant no. 2 and the defendant no. 2 controls the actions, affairs etc., of the defendant no. 1 and as such, the defendant no. 2 was liable for the actions / conduct of the defendant no. 1. It is stated that the defendant no. 1 was interested in purchasing ANTIVIRUS and requested the plaintiff to provide the quotation price for the same and on the request of defendant no. 1, the plaintiff provided the price for the aforesaid ANTIVIRUS (NORTON INTERNET SECURITY 2007) quoted as Rs.
2500/ per piece. It is further stated that vide letter dated 23.08.2007, the defendant no. 1 accepted the rate quoted by the plaintiff and also ordered for supply of 20 AntiVirus (NORTON INTERNET SECURITY 2007). The same were supplied to the defendant no. 1 vide invoice bearing no. 65 dated 24.08.2007 for an amount of Rs. 50,000/. The same was received by the defendant no. 1. It is stated that the order for 10 pieces of the antivirus were again ordered by defendant no. 1 and the same were duly supplied to him on 27.08.2007, vide invoice bearing no. 668 an amounting to Rs.25,000/ which was also received by D1. It is further stated that again defendant no. 1 ordered for supply of 20 CS NO. 458/14 Page No. 2 /30 Anti Virus (NORTON INTERNET SECURITY 2007) and the same were also supplied to him on 29.07.2007 vide invoice no. 670 for a sum of Rs. 50,000/ which was also duly received by D1. It is further stated that the goods/Anti Virus supplied by the plaintiff to the defendant no. 1 was worth Rs. 1,25,000/. It is further stated that despite repeated requests and demands by the plaintiff to clear the outstanding dues for the said goods/ AntiVirus supplied to it, the defendant no. 1 failed to clear the outstanding dues amounting to Rs.1.25 lacs. The plaintiff vide letter dated 06.12.2007 and 29.01.2008, requests the defendant no. 1 to clear the outstanding dues regarding the said AntiVirus supplied to it. Again on 18.02.2008, the plaintiff send a demand notice to the defendant no. 1 to make the payment of the aforesaid outstanding amount of Rs.1.25 lacs for 50 pieces of AntiVirus supplied to it, but of no avail. Despite the notice was received by defendant, the defendant no.1 fail to clear outstading dues. It is stated that defendant no.1 sent a false and frivolous reply dated 24.03.2008 wherein absolutely false and frivolous allegations were leveled to avoid the payment of the said which the defendant no.1 is under legal obligation to pay. 2.2 Left with no alternatives the plaintiff got issued the defendant no.2 the statutory notice under Section 80 of CPC dated 16.05.2008, inter alia calling upon the defendant no.2 to ensure that outstading CS NO. 458/14 Page No. 3 /30 dues were release by defendant no.1 and further in case of non payment by defendant no.1 to make the payment of the said amount of Rs. 1.25 lakhs as, the defendant no.2 is vicariously liable for the action of defendant no.1 and is jointly as well severely liable to make payment of the said amount along with interest thereon. The said legal notice dated 16.05.2008 stands duly served upon defendant no.1 & 2. the counsel for the plaintiff have not received back the same being undelivered. The defendant no.1 sent a false and frivolous reply to the said notice.
2.3 Despite having being served with the notice of demand, the defendant have failed to clear dues for the supply of Anti Virus to defendant no.1 and as such the defendants are jointly as well as severely liable to make payment of the said amount which has been with hold by them illegally.
2.4 It is submitted that the plaintiff has supplied the goods/anti virus to the defendant no.1 as per the specifications and order of defendant no.1 or the price quoted by plaintiff and accepted by defendant no.1. It is submitted that the said goods was duly received and the bills were raised, it shows that the goods were received and accepted by defendant no.1 and as such the defendants are jointly as alleged severely liable to clear the outstanding amounts towards the CS NO. 458/14 Page No. 4 /30 supply of the goods.
2.5 It is also submitted that the goods/anti virus were supplied to the defendant no.1 on the basis the written request to the supplied of the goods/anti virus as the price quoted by plaintiff and accepted by the defendant no.1, thus culminating legally enforceable contract. 2.6 It is further submitted by the plaintiff is also entitled to recover the sum of Rs. 22,500/ being the interest @ 18% p.a. of the aforesaid amount of Rs. 1.25 lakh from the date of bills till the filing of the suit and thus totaling to 1,47,500/ being the suit suit amount. It is also stated that as per the agreement between the parities it was agreed that interest @ 24% p.a. shall be payable in case. The payment is not made within 7 days and this fact was incorporated in the bills raised by the plaintiff and accepted by the defendant. However, the plaintiff has restricted his claim qua the interest only to @ 18% p.a. 2.7 The cause of action arose in favour of plaintiff and against defendant when defendant no.1 requested the plaintiff to provide the quotation price for anti virus (Norton Internet Security 2007). It is also arose on 22.08.2007 when the quotation price was intimated to the defendant by the plaintiff. The cause of action further arose on 23.08.2007 when defendant no.1 accepted the price quoted by plaintiff and order for supply of 20 antivirus. It further arose on 24.08.2007, CS NO. 458/14 Page No. 5 /30 when the 20 pieces of antivirus were supplied to the defendant no.1 against invoice which was duly received by the defendant no.1. The cause of action further arose on 24.08.2007, when the defendant no.1 again ordered for supply of 10 antivirus and it further arose on 27.08.2007 when the antivirus were supplied against invoice. It further arose on 28.08.2007, when the defendant no.1 again ordered for supply of 20 pieces of antivirus and it further arose on 29.08.2007, when the 20 antivirus were supplied to the defendant no1. The cause of action stated to have further arose on various dated when the plaintiff requested it to clear the outstanding amount for the supply of the anti virus. It further arose on 06.12.2007 and 29.01.2008 when the defendant no.1 was requested by the plaintiff in writing to clear the outstanding dues. It further arose on 18.02.2008, when the plaintiff got issued to the defendant no.1 the legal notice of demand, calling upon it to clear the outstanding bill. The cause of action again arose on 24.03.2008, when the defendant no.1 sent a false and frivolous reply to the Plaintiff's notice making false allegations. It further arose on 03.05.2008, when the plaintiff sent a rejoinder to the said reply and further called the defendant to clear the outstanding amount. The cause of action further arose on 16.05.2008. when the plaintiff got issued to the defendants the statutory notice of demand under section 80 CPC, calling upon them to CS NO. 458/14 Page No. 6 /30 clear the outstanding dues. It is submitted that the cause of action further arose on 10.07.2008 when the defendant no.2 sent a false and frivolous reply to the aforesaid notice. The cause of action stated to have still subsist, as the defendants have failed to clear the outstanding dues for the goods/antivirus supplied to the defendant no.1. It is submitted that the cause of action further arose on 10.07.2008 when the defendant no.2 sent a false and frivolous reply to the aforesaid notice. It is submitted that cause of action to sell subsidy as the amount still outstanding against the defendant. 2.8 The prayer is made to pass a decree for recovery of amount of Rs. 1,47,500/ in favour of plaintiff and against defendant along with the pendentelite interest @ 18% p.m. from the date of filing of the present suit till its realization.
3. The present suit has been filed under Order 37 CPC vide order dated 29.02.2012 passed Ld. Predecessor conditional leave to defend was granted to the defendant, thereby giving only one opportunity to lead evidence before the court.
3.1 Accordingly, written statement on behalf of defendant no. 1 & 2 filed thereby taking preliminary objection to the effect that the present suit is liable to be dismissed for misjoinder of parties as the plaintiff has incorrectly included the name of defendant no.2 in the present suit CS NO. 458/14 Page No. 7 /30 who has nothing to do with the present dispute. It is submitted that the plaintiff has not approach the court with clean hands and has suppressed material and true facts from the court.
3.2 It is also stated that the suit of the plaintiff is without any cause of action & the same is liable to be rejected under Order 7 Rule 11 CPC. 3.3 Reply on merits, it is submitted that the name of the defendant no.2 is liable to struck off/deleted from the array of parties as the defendant no.2 neither a necessary nor proper party, hence the suit of plaintiff is liable to be dismissed against defendant no.2. It is stated that admittedly the plaintiff never had any dealing with the defendant no.2 nor any relief has been claimed against defendnat no.2, hence the suit of plaintiff is liable to be dismissed under Order 1 of the Code of Civil Procedure. It is denied that the defendant no.2 is vicariously liable for the action of the defendant no.1.
3.4 It is stated in the year 2007 that the defendant no.2 had invited quotation for the purchase of Anti Virus Norton 2007 from various suppliers including plaintiff.
3.5 It is stated that it is not denied that in response to the requirement of the defendant no.1 the plaintiff had sent his quotation and quoted price of the Norton Anti Virus 2007 version one license/user per CD at Rs. 2,500/.
CS NO. 458/14 Page No. 8 /30 3.6 It is also not denied that defendant no. 1 vide letter dated 23.07.2007 ordered for supply of 20 Norton Anti Virus 2007 version, vide order dated 24.08.2007 ordered for supply of 10 Norton anti Virus 2007 version and again vide order dated 28.08.2007 ordered for suppy of 20 Norton Anti Virus 2007 version. It is further not denied that the invoices dated 24.08.2007 to 27.08.2007 and 29.08.2007 raised by the plaintiff for aforesaid orders were received by defendant no.1. However, it is clarified that required anti virus were to be installed by the plaintiff in the computer(CPU) of the defendant no.1 and at the time of taking signature of the above bills the plaintiff wrongly assured the defendant no.1 that he has installed the required Anti Virus in the computer of defendant no.1 and the official of the defendant no.1 was under bona fide impression signed the said bills/invoices without conducting the physical verification of each computer as it requires lot of time. 3.7 It is also denied that the plaintiff has supplied defendant no.1 a total 50 pieces of Anti Virus Norton Internet Security 2007 version as alleged. It is further denied that the plaintiff supplied the goods as per specification and requirement of the defendant no.1. It is also denied that the plaintiff supplied the goods as demanded. It is also denied that the goods worth Rs. 1,25,000/ were supplied by the plaintiff to defendant no.1 and the plaintiff has been deliberately making false CS NO. 458/14 Page No. 9 /30 submission before the court. It is also stated that the defendant no.1 being Government instrumentality before passing the bills/invoices raised by the plaintiff was to conduct physical verification of the Anti Virus Software installed by the plaintiff in the computer of defendant no.1 to ascertain the truth of the claim made by the plaintiff. It is also stated that the physical verification was done by one Mr. Sunil Jairath, Multimedia Assistant of IGNCA Nodal agency of NMM on 28.12.2007. During physical verification it was found that the plaintiff had installed/supplied only 12 Norton Anti Virus 2007 version and rest supplied/installed by the plaintiff were Norton Anti Virus 2008 version, which was much cheaper in the market instead of Norton Anti Virus 2007 version. It is also found in the physical verification that the plaintiff had not supplied the 50 C.D containing one license/per user/per CD as falsely claimed in the invoices raised by the plaintiff rather only 14 CDs were supplied by the plaintiff to the defendant no.1 out of which 4 CD were Norton Anti Virus 2008 version containing 5 license/per user CD totaling 20 Anti Virus, 6 CD were Norton Anti Virus 2008 version containing, 3 license/per user CD totaling 18 Anti Virus and 4 CD were Norton Anti Virus 2007 version containing 3 license/user per CD totaling 12 Anti Virus. Therefore the plaintiff has supplied only 12 license/user of Norton Anti Virus 2007 version, which CS NO. 458/14 Page No. 10 /30 too in 4 CD only. It is also submitted that the costs of the same is less than the quotation sent by the plaintiff. It is submitted that the plaintiff cheated the defendants in calculated manner and the defendant no.1 in order to ascertain the actual costs of the goods supplied when the plaintiff invited a subsequent quotation from the PVR system in its quotation quoted the price of Norton Anti Virus 2008 as Rs. 5,200/ only for the 10 user per Box and for 50 number of Anti Virus/per user the cost comes to Rs. 26,000/ only. It is stated that the plaintiff is claiming excessive and exorbitant amount from defendant no.1 in order to illegally enrich himself. It is submitted that the defendant no.1 were not as per the requirement and specification of the defendant no.1. The copy of physical verification report and quotation submitted by the PVR System are being filed on record. It is stated that the defendant no. 1 still having the original 14 CDs which was supplied by the plaintiff. 3.8 It is also submitted that since the demand raised by the plaintiff in letter dated 06.12.2007 and 29.01.2008 was illegal and unjust therefore the same was rightly rejected by the defendant no.1 and the same was duly intimated to the plaintiff through reply dated 05.02.2008 that the plaintiff was asked to take the actual market price of the goods supplied by him i.e. Rs. 26,000/. It is denied that the defendant no.1 failed to clear the actual market price of the goods supplied by the CS NO. 458/14 Page No. 11 /30 plaintiff. Contrary the defendant no.1 time and again requested the plaintiff to confirm and to collect the actual market price of the goods supplied.
3.9 It is submitted that the plaintiff duly admitted and vide by a letter on record of defendant no.1 dated 05.02.2008. It is established that the plaintiff has falsely sent legal notice dated 18.02.2008 based on false and incorrect facts, and the same was duly replied by the defendant no.1 through its reply dated 24.03.2008 which was duly received by the plaintiff. It is stated that in reply to the said letter said to the plaintiff was once again asked to rectify his bills/invoices and take the actual market price of the goods supplied by him. The plaintiff duly admitted and himself filed on record the said reply of the defendant no.1 dated 24.03.2008.
3.10 It is submitted that the legal notice dated 16.05.2008 sent by the plaintiff to the defendant under Section 80 of CPC was duly replied vide reply dated 10.07.2208 and the allegation and false claim of the plaintiff were denied. It is denied that the defendants were jointly and severely liable to payment of the false amount claimed in the plaintiff and there withholding the illegally recoverable dues as alleged. It is stated that the plaintiff himself legally claiming the excessive amount from defendant no.1 who is Government instrumentality and thus causing CS NO. 458/14 Page No. 12 /30 loss to public money.
3.11 It is also denied that the plaintiff supplied goods/Anti Virus as per the specifications of the orders of defendant no.1 on the price quoted by the plaintiff and accepted by the defendant no.1. It is further denied that the goods as ordered were duly received by defendant no.1. It is further denied that the defendant no.1 are jointly or severely liable to pay the alleged outstanding amount of plaintiff. It is stated that the plaintiff has raised exorbitant bills on the false claim and suit of plaintiff is liable to be dismissed. It is also denied that the goods suppled to the defendant no.1 were as per the price quoted or as per the specifications of the defendant no.1. It is also denied that any legally enforceable contract exists between the plaintiff and defendant no.1. It is also denied that the claim/demand of plaintiff no.1 of Rs. 1,25 lakhs is a liquidated demand based on legal enforceable contract as alleged.
3.12 It is also denied that the plaintiff is also entitled to recover the sum of Rs. 1,25 lakhs being alleged as a interest @ 18% p.a. on the alleged principal amount of Rs. 1.25 lakhs from the date of bill till the filing of the suit. It is also denied that the plaintiff is entitled the recover of the alleged total sum of Rs. 1,47,500/ from the defendants. It is also denied that the plaintiff is entitled to any pedentelite or future interest CS NO. 458/14 Page No. 13 /30 as alleged. It is also denied that the alleged demand of the plaintiff is liquidated demand. It is also submitted that the no cause of action to institute the present suit has accused in favour of plaintiff and against the defendant as alleged.
3.13 A prayer is made to dismissed the suit of plaintiff with heavy cost.
4. Replication to the WS filed by the defendant wfere the averment and assertion made in the WS are denied in toto and stand taken by the plaintiff in the plaint is reaffirm and reiterated. From the pleadings of the parties. The following issue emerged:
1. Whether the plaintiff is entitled for the recovery of amount of Rs. 1,47,500/ from the defendant as prayed? OPP
2. Whether the plaintiff is entitled to the pendent lite in future interest if, yes, at what rate of interest and for what period? OPP
3. Whether the defendant no.2 is not a necessary party and the same is entitled to be deleted from the array of defendant? OPP
4. Whether the suit of plaintiff is without cause of action and the plaint is liable to be rejected under Order 7 Rule 11 CPC? OPD
5. Whether the plaintiff has supplied cheaper version of Norton Anti Virus Software to defendant and raised exorbitant bill? OPD CS NO. 458/14 Page No. 14 /30
6. Relief.
5. In support of this case the plaintiff examined Sh. Vijay Kumar as PW1 who placed reliance of Ex. PW/1 to PW/23 were as defendant examined DW1 Sh. Vishal Ranjan Malik in support of his case and the witness placed reliance on document Ex. DW1/1, DW1/19 and marked A & B respectively.
5.1 During the cause of cross examination PW1 Sh. Vijay Kumar proprietor M/s Vee Jay company deposed that he has been running a business with the name & style M/s Vee Jay Company since 1986. It is also stated that he has been engaged in the business with National Thermal Power Corporation as well. Witness stated that he does not stock the antivirus software & he need to purchase the same as & when it was required from open market as per order. PW1 admitted that defendant no.2 has not invited any quotation from the plaintiff not did the plaintiff sent any quotation to the defendant no.2. It was further admitted that defendant no.2 did not placed any order with the plaintiff the order was placed by defendant no.1. It was also admitted that the plaintiff not supply the softwares to the defendant no.2. The suggestion has been denied, by the witness, that defendant no.2 has been wrongly made a party in the suit. It is also admitted that the purchased the software from the open market, when the order was CS NO. 458/14 Page No. 15 /30 placed by the defendant no.1 in respect of the antivirus software from Nehru place market by paying in cash. Plaintiff/PW1 admitted that CD containing two softwares would cost less in comparison to CD containing only one software. It was denied that CD containing five Norton Antivirus Software ( Internet Security 2007) would cost less than a CD containing three or one Norton Antivirus Software (Internet Security 2007) the witness disposed that the CDs of Norton Anti Virus Software would cost the same. It is admitted that the quotation Ex PW1/1 sent to the defendant no.1 was in respect of only one unit of software/per user, the quotation was in the respect of Norton Anti Virus software (Internet security 2007). The witness further admitted that if the defendant no.1 had placed order only for one antivirus software, it would have been provided to the defendant in one CD however, the rate of same would be different. It is deposed by the witness while inviting of the quotation the defendant no.1 had not disclosed the required quantity of antivirus software the defendant no.1 had disclosed to the plaintiff that no software to be installed verbally. 5.2 PW1 fail to remember the exact number of the CDs to be the aforesaid software was supplied to defendant no.1. It is also denied that out of the total CDs supplied by him, only four of them had Norton Antivirus Software 2007 and 10 CDs had the version of Norton Antivirus CS NO. 458/14 Page No. 16 /30 2008. It is also denied that the Norton Antivirus 2008 is cheaper than Norton Antivirus Software 2007 addition. It is also denied that that Norton Antivirus Software 2008 was available in the market in the mid of year 2007. It is admitted that the plaintiff had installed the Antivirus Software in 50 computer system of defendant no.1. It is also denied that the plaintiff has only 12 nos. of Norton Antivirus software 2007 installed in the computer systems of defendant no.1. The witness fail to tell whether the Norton Antivirus Software 2008 was available as a pack of 10 software per CD at the cost of Rs. 5,200/ in the year 2007 and the cost of the software supplied by him was only Rs. 26,000/. It is admitted that the witness has not placed on record any document pertaining of the purchase of the Software by him from the market showing purchase of 50 Norton Antivirus Software in the year 2007. It is denied that the claim is exorbitant.
5.3 In support of his case the defendant no.1 Sh. Biswaranjan Mallick working as a programmer with National Mission for Manuscript. He placed rely upon Ex. DW1/2 to Ex. DW1/15 and whose document by admitting PW1/10, PW1/14, PW1/22 respectively. During the course of crossexamination it has reported that he was working with defendant no.1 and have been authorized by my senior officials to appear and depose in the present matter. It is admitted by the witness CS NO. 458/14 Page No. 17 /30 that he does not communication and correspondence between defendant no.1 and other organization. It is also admitted that defendant no.1 is working under the auspicious of defendant no.2 and the appointment and the removal of the officials in defendant no.1 is under the control of the director of defendant no.1. It is also admitted that the director of defendant no.1 is under the control of defendant no.2. It is further admitted that the budget and the financial resources allocation of defendant no.1 is under the control of defendant no.2. It is further admitted that Ex. PW1/19 is addressed to the Ministry of Culture. It is also admitted that Ex. PW1/1 there is no mention of one software/per license per CD per user. It is also correct that the rate which was quoted in Ex. PW1/1 in the year 2007 for one antivirus (Norton Internet Security 2007). It is also admitted that Ex. PW1/2, PW1/4 and PW1/6 there is no mention of one software/per user/per license/ per CD. It is also admitted that Ex. PW1/2. PW1/4 and PW1/6 were placed on different dates. It is further admitted that after the supply of the goods the objection as regard them not conforming to the order and specification were not raised till December, 2007. It is also admitted that only after the plaintiff made demand of his bills vide letter Ex. PW1/10 dated 05.02.2008. It is deposed that for inspecting as to what software of the antivirus in installed in a computer system, it CS NO. 458/14 Page No. 18 /30 takes about 5 minutes and for verifying the software installed in 50 computers systems it would have taken more than 2 hours. It is also after installation of the software it does not take much time for checking. It is also admitted that it does not taken four months to verify the software has been installed. It is also deposed that verification dated 28.12.2007 was done at the request of Internal Financial Advisor and a formal order was passed for physical verification of the system however no such order is placed on record. It is correct that the software were installed in all the 50 systems as per the order. It is denied that the plaintiff had duly supplied the order placed by the defendant no.1 and the witness unable to disposed as to whether the Anti Virus Software are available in open market. It is also deposed by the witness that the perusal of Ex. DW1/2, DW1/15, it can not be said that only these are the software which were supplied to the defendant by the plaintiff. The witness stated that the Government Organization cannot purchase goods/software from the open market. It is also denied that Ex. DW1/2 to DW1/15 are not those software which were supplied by the plaintiff, and they are different software which were supplied by the plaintiff.
5.4 It is denied that the plaintiff had supplied and installed Norton Internet Security Anti Virus 2007 in 50 systems as per orders. It is also CS NO. 458/14 Page No. 19 /30 denied that the defendant have withhold the legitimate dues of the plaintiff despite repeated demands and notice. It is also denied that the suit amount is due or payable by defendant. It is also denied that the Ex. DW1/2 to DW1/15 have been purchased by the defendant from open market with a view to frustrate of the plaintiff. It is also denied after the delivery of the goods, the defendant has deliberately and intentionally payment of the bills raised by the plaintiff, and the defendants are liable to pay the interest in terms of Ex. PW1/3, Ex. PW1/5 and Ex. PW1/7, which were duly received. It is also denied that the mark A & B were forged and fabricated evidence, which were manufactured to frustrate the claim of the plaintiff.
6. Now my issue wise finding is as under. For the sake of convenience issue no. 3 & 4 would be decided first.
6.1 ISSUES NO. 3 & 4
iii) Whether the defendant no.2 is not a necessary party and is entitled to be deleted from the array of defendants? OPD
iv) Whether the suit of plaintiff is without any cause of action and plait is liable to be rejected under Order 7 Rule 11 CPC? OPD 6.2 It is claim of the defendant that the defendant no.1 is not a necessary party. The contention of the defendant does not hold water since, not only from the documentary evidence put forth on the record CS NO. 458/14 Page No. 20 /30 which is Ex. PW1/2, Ex. PW1/4, Ex. PW1/6, Ex. PW1/10 speaks volumes about the same. The above said exhibits are chiefly letters on the letter pad of National Mission for Manuscript which clearly states that the defendant no.1 is under auspicious documents Culture Ministry and Government of India.
6.3 It leaves nothing for imagination that the defendant no.1 is a instrumentality and venture of the defendant no.2 further the cross examination of DW1 also admission in terms that defendant no.1 is working under the auspicious of defendant no.2 and even he appointment, removal of the officials in defendant no.1 is under the control of defendant no.1. It was also admitted by the witness that defendant no.1 is under the control of defendant no.2 allocations the budget and official resources of defendant no.1.
6.4 Hence, it stands prove that defendant no.2 is a necessary party in the present case and objection taken by the defendant that defendant no.2 is not a necessary party is devoid of any merits. Facts and circumstances of the case manifested that the plaintiff has made the defendant no.2. It is established that removal and appointment of officials and allocations of official budget to defendant no.1 are suffice reason to show that defendant no.1 is under the control and supervision of defendant no.2, who is also vicariously liable for the acts CS NO. 458/14 Page No. 21 /30 & omission of defendant no.1 being the controlling authority. 6.5 As far as the issue no.4 is concern where it is claim that the stand of plaintiff is liable to be rejected since it does not disclose any cause of action for the present suit is also nothing but bald assertion. From the perusal of material available on record reflect that there was a contract to deliver certain specific software by the plaintiff on the response to the quotation of the defendant no.1 and the same was accepted by the plaintiff/ and quotation/specifications were sent to the plaintiff. However, in the quotation there were no specific attributes regarding the installation details were asked by the defendants for the Anti Virus, it was only requested supply of Norton Internet Security in 2007 quantity one and rate at the rate of 2500/ was accepted by the defendant vide Ex. PW1/2, which was quoted by plaintiff. The issuance of the PW1/2 established that the defendant have accepted the over all plaintiff and accordingly placed order on the basis of said quotation for 20 Anti Virus for Norton Internet Security 2007. However, it is pertinent to mention that there is no mention of single user/license/CD neither anything is on record to show that the defendant asked for antivirus programme, which can be installed on the basis of single user/single license/CD base.
6.6 Accordingly, the bill was raised as Ex. PW1/3 by the plaintiff, CS NO. 458/14 Page No. 22 /30 which was duly received by the defendant. Further on the same description and quotation again 10 Antivirus were asked for supplied by the defendant and reflected by Ex. PW1/6, 20 Norton Antivirus Security 2007 were ordered by the defendant to be installed in their system. The corresponding bill were raised by the plaintiff which were Ex. PW1/3, PW1/5 and PW1/7 respectively.
6.7 Furthermore Ex. PW1/8 and PW1/9 are letters requesting due payment by the defendant. Thereafter the vide Ex. PW1/10, the defendant raised their objection for the first time dated 05.01.2008 and restricted the claim of Rs. 1,25,000/ as demanded by the plaintiff stating it to be not corresponding with the bills of the order. Thereafter legal notice was issued by the plaintiff Ex. PW1/11, which was responded by defendant as vide Ex. PW1/14 refuting the claims of plaintiff and stating that the oder against 50 Anti Virus of Norton Internet Security 2000 was not as per the demands of the defendant and the plaintiff was asking to accept exclusive price for the same. Again the rejoinder reply was sent to the counsel for defendants by the plaintiff when no the said notice were not comply the plaintiff issued a notice under Section 80 CPC and proceeded to instituted the present suit.
6.8 The above stated series of incidents shows that a valid cause of CS NO. 458/14 Page No. 23 /30 action available to the plaintiff against defendant as amount of the goods supplied to the defendant are still outstanding and the cause of action still continuing in favour of plaintiff. It is also manifested for the crossexamination of DW1 that the goods were supplied as per the order placed by the defendant and despite that no outstanding payment has been made by the defendant. It is also came in the cross examination of the witness that for the first time when the plaintiff sent legal notice for non of the payment of outstanding amount to the defendant, the Ex. PW1/10 was issued by the defendant claiming that the antivirus supplied by the defendnat are not up to specification asked by the defendant and they would not correspond their demands the various other objections were raised on the supply for the first time and even the rates of the goods were claim to be excessive, which was not disputed earlier by the defendant.
7. In my opinion it is sufficient cause of action in favour of plaintiff and. Accordingly, the issues decided in favour of plaintiff against defendant no. 1 & 2. Reasons stated above both the issues no. 3 & 4 are decided in favour of plaintiff & against defendant.
8. Finding on issue no. 1 & 2.
i) Whether the plaintiff is entitled for recovery of Rs. 1,47,500/ from defendants as prayed? OPP CS NO. 458/14 Page No. 24 /30
ii) Whether the plaintiff is entitled to pendentelite and future interest, if yes, at what rate? OPP 8.1 Ex. PW1/1 is the quotation sent by the plaintiff in response to the invitation to the quotation of defendant & it does not in any matter specified only in description that one user/one license system is asked by the defendant. It simply read Antivirus (Norton Internet Security 2007) quality one @ 2500 per unit, the letter Ex. PW1/2 issued by the defendant no.1 to the plaintiff accepted the quotation, in the description total and no objection was raised as no negotiation or for the price of the goods nor the description of the goods were discussed and the same was accepted as it is offered by the plaintiff. 8.2 Infact the plaintiff has also raised the bill after installing the system in the defendants computer dated 24.08.2007, which was accepted by PW1/3. Again the earlier order for 10 antivirus on the same quotation has sent by plaintiff vide which is Ex. PW1/1. The goods were again installed in the computers as per the order and the bill was raised dated 27.08.2007 by the plaintiff Ex. PW1/5. Similarly once again the plaintiff directed for the supply of 20 antivirus vide Ex. PW1/6, which were duly installed and supplied by the plaintiff and a bill was raised y the plaintiff dated 29.08.2007, Ex. PW1/7 for an amount of Rs. 50.000/. 8.3 It is clear that on three consecutive occasions the defendant CS NO. 458/14 Page No. 25 /30 placed similar demands for supply of Anti Virus to be installed by the plaintiff on same terms and conditions and the same was supplied by the plaintiff as asked. There is no whisper of fact that one user/ one CD/ one pack in any of the above said letter issued by the defendant while placing order for Anti Virus. It is claim by the defendant that the Anti Virus supplied by the plaintiff were not as per the specification and the upon inspections have been revealed that the plaintiff has installed a cheaper version of Anti Virus available in open market instead of Norton Anti Virus 2007, and the plaintiff has also installed multiple software from one CD. The of admission made by the DW1 reveal another picture. There is clear and specific admission of defendant no. 1 which states that it is only when the plaintiff raised the demands, the letter PW1/10 were issued by the defendant for the first time, raising various objection with respect to the Anti Virus installed in the system and the prayer to the same no objection was raised by the defendant till date. It is also revealed that the physical inspection of the Anti Virus was conducted on the request of the defendants officials, however, there is nothing on record to substantiate the same further more the person, who had conducted, the inspection was not made a witness for the reason best known to the defendant.
8.4 It is also pertinent to mention that the Ex. Pw1/10 dated CS NO. 458/14 Page No. 26 /30 05.01.2010 whereas within installation of software relates pack to August, 2007. The witness also admitted that they does not require a four month time to inspect the specification of the Anti Virus system installed in the computers and there was a ample time to inspect the Anti Virus for the defendant.
8.5 It is claim by the plaintiff that in order to defeat the claim of the plaintiff the said objections are raised by the defendant and it is not explain as to why the defendant kept mum for four months if they were not satisfied with the goods supplied. The stand of the defendant specially after the receiving the bill of plaintiff the defendant started processing and the inspection & it was carried on 28.12.2007, it is found that only 12 software were of Norton Anti Virus 2007 and 38 of 2008 version, which were cheaper in comparison to 2007 version. 8.6 It is claim by the defendant that vide PW1/10 is the rectify bill of the plaintiff was communicated to him and was call upon to collect the payment.
9. The court of the opinion that the facts and circumstances and evidence placed on the record reflect that one unit of software as claim by the plaintiff was never in issue and it was never in controversy till the demand of the goods supplied raised by the plaintiff. It is also not clear as to why the defendant kept a mum for four months and does CS NO. 458/14 Page No. 27 /30 not sent a single communication to the plaintiff with their installed software does not correspond the demand of the defendant. Furthermore the original quotation PW1/1 is never disputed by the defendant and on the basis of the same again and again orders were placed by the defendant no.1 which were accordingly supplied and installed by the plaintiff.
10. It is clear that supply of goods are not disputed but the description for dispute by the defendant, if this was the case, why fresh quotation were not invited. However, nothing is on record to show that there was specific terms and conditions between the parties about the single user of the CD and its license apart from Norton Anti Virus version 2007.
11. In my opinion there is no substance in the objection raised by the defendant and the stand taken by the defendant that only after four months they were able to know that the goods were supplied by the plaintiff were not as per their description is blatant lie.
12. In my opinion the plaintiff is entitled for the decreetal amount further along with interest as the bill raised by the plaintiff specifically laid down terms and conditions with respect to the interest @ 24% p.a. if the bills are not paid in 7 days. However, the rate of interest asked by the plaintiff @ 18% p.a. seems bit exorbitant and hence,only interest @ 12% p.a is granted to the plaintiff on the goods supplied. CS NO. 458/14 Page No. 28 /30
13. Keeping in view the consents of law. Accordingly, the issues are denied in favour of plaintiff and these defendant.
vi) Whether the plaintiff has supplied the cheaper version of Norton Anti Virus software to the defendant and raised exorbitant as prayed? OPD
ii) Relief.
14. From the deliberations of the above issues it is settled that there is no description given by the defendant while placing the order of Norton Anti Virus 2007 specify the single user or license per CD. The claim of the defendant that the plaintiff has installed Norton Anti Virus 2008 version in 2007 itself is also not proved. It is also claim that four CD of Norton Anti Virus 2008 contain with the license per user and these CDs are available in much cheaper rater then the Norton Anti Virus 2007 asked by the defendant. The crossexamination of DW1 revealed that there was no mention of one software per user/per user/per CD/per in the quotation made to the plaintiff and the date was accepted as 2,500/ one Anti Virus ( Norton Anti Virus 2007). PW1 was put specific question in his crossexamination about the same the witness expresses unawareness as to whether the said Anti Virus 2008 version was available in 2007 or that the same were available at the cheaper cost in comparison 2007 version Anti Virus to the witness PW1 was CS NO. 458/14 Page No. 29 /30 candid enough to accept that he has purchase the Norton Anti Virus 2007 version from open market when the demands was made by the defendant to installed the same and there is nothing on record to show that the plaintiff has installed a cheaper version of antivirus software 2008 instead of 2007 version. The witness defendant no.1 could not identify the Ex. DW1/2 to DW1/5 which were the cover of photocopy of cover claim to be installed by the plaintiff as per the order of the defendant.
15. Culminative effect of these admission of the DW1 leads to one inevitable conclusion that the plaintiff has installed the Anti Virus system as per order placed by the defendant and there in no discrepancy, as claim by the defendant hence for the reason above issues deiced in favour of plaintiff against defendant.
16. Relief:
Accordingly the suit of plaintiff is decreed along with cost and interest @ 12% p.a. at the decreetal amount from the filing of the till date of decree.
17. Decree sheet be drawn, file be consigned to record room.
Announced in Open Court (KADAMBARI AWASTHI)
today i.e. Civil Judge02/Central
Tis Hazari Courts : Delhi
CS NO. 458/14 Page No. 30 /30