Delhi District Court
M/S. Globe Ground India Pvt. Ltd vs M/S. Ava Merchandising Pvt. Ltd on 6 September, 2014
1
IN THE COURT OF SHRI JAGDISH KUMAR,
ADDL. DISTRICT JUDGE06, DELHI
Suit No.40/14
Unique ID No.02401C0235432014
M/s. Globe Ground India Pvt. Ltd.
A Company incorporated under the
office at E9, Cannaught House,
Cannaught Place, New Delhi
Through its Director,
Mrs. Radha Bhatia. ...........Plaintiff.
Versus
M/s. AVA Merchandising Pvt. Ltd.
i) 3/7, Rajindra Place, New Delhi.
Through Sh. P. V. Swamy
Head Operations (Southern Region)
ii) Plot No. 62, Sector18
Gurgaon, Haryana122001
Through its Director. .............Defendant.
Date of Institution : 16.07.2009
Date of Argument : 06.09.2014
Date of decision : 06.09.2014
SUIT FOR RECOVERY OF RS. 10,73,578/(RUPEES TEN LACK
SENTYTHREE THOUSAND FIVE HUNDRED AND SEVENTY
EIGHT ONLY)
Suit No40/14 ....1/15
2
1.The plaintiff M/s Globe Ground India Pvt. Ltd. is a company incorporated under the companies act 1956, having its Registered Office at E9, Cannaught House, Cannaught place, New Delhi. The plaintiff company is carrying its business of ground handling at domestic and international Airports in India from its registered office. The present suit has been filed by the plaintiff through its director Mrs. Radha Bhatia, being empowered to file the present suit.
2. The defendant M/s. AVA merchandising Pvt Ltd. is carrying on business of merchandising/sale of their product, specially their bags and such other materials. Sh. P. V. Swamy, head (operation) of the defendant company from its office at New Delhi approached the official of the plaintiff company at its registered office at E9, cannaught house, cannuaght place, New Delhi on 03.06.2008. The official of the defendant company had needed a space for storage of their material for merchandising their product at Bangalore International Airport. The official of the defendant company had also required transportation to and fro from the main building to the Aircraft at Bay. As per discussion, between plaintiff and defendant, the said Mr. Swamy head operations (Southern Region) New Delhi, brought a Suit No40/14 ....2/15 3 contractual agreement to the head office of the plaintiff company at New Delhi. Since the defendant company had an agreement with Deccan for in flight operations. A agreement dated 03.06.2008 was executed between plaintiff and defendant at registered office of the plaintiff. The plaintiff stated as per agreement dated 03.06.2008. plaintiff has provided a space of 100 sq. feet area in BME at Bangalore International Airport for storing the scanned product of the defendant company to be uplifted on board to Deccan Airways Flights to and fro.
3. It is further stated by the plaintiff that in consideration of the services provided by the plaintiff company, the defendant company was required to pay a sum of Rs 2,50,000/ per month apart from the service tax applicable under the exiting law. The agreement was came into effect on 06.06.2008. A invoice NO. AVA/P/SSC/3090001 dated 01.07.2008 for the month of June 2008, for a total amount of Rs. 2,30,878/ including the tax as per law, was issued by the plaintiff. The payment was liable to be paid by the defendants within 30 days. The defendant company had not cleared the payment against the said invoice. However, in order to continue availing the service of the plaintiff company, plaintiff company was sending regular bails/invoices to the defendants for the job performed by the plaintiff company for the month of July, August and September. The plaintiff alleged that Suit No40/14 ....3/15 4 defendant has not paid the amount of services availed by the defendant company which comes to Rs. 10,73,578/. The Requests were made to the defendants to pay the amount of Rs 10,73,578/ and ultimately Mr. P. V. Swamy, head operations of AVA merchandising company, vide email dated 23.09.2008 sent to the official of the plaintiff, informed the plaintiff that he would request the account department of the defendants to clear the bills of the plaintiff. The plaintiff alleged that despite insurance of Mr. P. V. Swamy the defendants had not paid the amount for the services availed by the defendants. A demand notice dated 28.04.2009 was sent to the defendants through registered post. The notice was duly acknowledged by the defendants but despite that defendants had not paid the said due amount. Hence, present suit has been filed.
4. Summons of the suit were issued to the defendants. Defendant company has filed the detailed WS. The defendant company has took the preliminary objection that plaintiff has not come to the court with clean hands. The defendant company has also took the objection that this court has no territorial jurisdiction to try the present suit. It is stated that the agreement dated 03.06.2008 was not executed within the territorial jurisdiction of this court. The defendant company has also took the objection that no cause of action has been arose within Suit No40/14 ....4/15 5 the territorial jurisdiction of this court. It is stated that the agreement dated 03.06.2008 was executed at Bangalore.
5. While replying on merit the defendant company stated that Sh. P. V. Swamy head operations of the defendant company had not brought the contractual agreement to the head office of the plaintiff company at New Delhi. The agreement was executed at Bangalore. It is stated by the defendant company that no official or representative of the defendant company had visited the office of the plaintiff at New Delhi. It is also stated that plaintiff had not provided 100 sq feet space in BMA area as required by the terms and condition of the contract for which reason the defendant company faced acute problem for proper storage of its product and baggage. On several occasions the defendant company was reprimanded by the official of the BIAL for not following their norms in storing the products and baggage. The defendant company was completely unsatisfied with performance of the contract by the plaintiff as separate vehicles for carrying products and baggage of the defendant company were not provided to it at the time of arrival and departure of the flight. The Plaintiff stated that several emails were sent to the plaintiff by the defendant company in which requests were made for providing vehicles. The defendant denied the receiving of the bills/invoices. The defendant company further stated that the demand Suit No40/14 ....5/15 6 raised by the plaintiff for the month of September, 2008 is illegal as it is in the knowledge of plaintiff that agreement 03.06.2008 was frustrate on 03.09.2008 as Deccan Airways was merged with Kingfisher Airlines. The defendant company has prayed for dismissal of the suit.
6. Replication to the WS of defendant filed by the plaintiff in which plaintiff has denied the allegations as leveled by the the defendant in WS. The plaintiff has reiterated and reaffirmed the statement as made in the plaint.
7. On the pleading of the parties following issues were framed on 14.05.2010 :
1. Whether this court has territorial jurisdiction to entertain and try the present suit ? OPP
2. Whether the plaintiff is entitled to the decree in the sum of Rs.10,73,578/ or any part thereof as prayed ? OPP
3. Whether the plaintiff is entitled to interest if so, at what rate, for what period and on what amount ?
4. Relief.
8. In support of its case, the plaintiff has examined three witnesses i.e. PW1 Sh. Rajat Maharishi who is the Deputy General Manager of the plaintiff, PW2 Mr. Patrick Tschiky, Head of Operations of plaintiff company and PW3 Sanjay Sawant who is the General Suit No40/14 ....6/15 7 Manager of the plaintiff company.
9. PW1 Sh. Rajat Maharishi has tendered his evidence by way of affidavit and proved on record the certificate of registration issued by the Registrar of Companies as MarkA ( in place of Ex.PW1/1), copy of extract of Resolution dt.14.12.2005 as Ex.PW1/2, Agreement dated 03.06.2008 as Ex.PW1/3, copy of invoices sent though email as as Ex.PW1/4 to Ex.PW1/12, Notice dt. 28.04.2009 as Ex.PW1/3, postal receipts and AD cards as Ex.PW1/4 to Ex.PW1/5, copy of email dt.20.09.2008. 27.09.2008, 10.11.2008 as Ex.PW1/16 to Ex.PW1/18 respectively.
10. PW2 Mr. Patrick Tschirky, who is the Head of Operations of the plaintiff company has also tendered his evidence by way of affidavit and deposed on the lines of pleadings.
11. PW3 Sh. Sanjay Savant, General ManagerFinance of the plaintiff company has also tendered his evidence by way of affidavit and proved the Annual Tax Statement u/s 203AA of Income Tax Act 1961 as Ex.PW3/1.
12. On the other hand, the defendant did not chose to lead its evidence despite various opportunities being given and accordingly, DE was closed vide order dated 16.04.2014 and case was fixed for final arguments.
Suit No40/14 ....7/15 8
13. I have heard the Ld. counsel for plaintiff as well as Ld. counsel for defendant and give my thoughtful consideration to the submission as made by the Ld. counsel. I also perused the record.
14. ISSUE NO.1 :
1. Whether this court has territorial jurisdiction to entertain and try the present suit ? OPP .
15. At the outset, I would like to mention the established principle of law, where under a Contract no place of payment is specified, the debtor must seek his creditor, therefore, the suit for recovery is maintainable at the place where the creditor resides or works for gain because part cause of action arises at that place also with the contemplation of Section 20 (c ) of CPC. Reliance can be placed upon judgment titled as State Bank of Punjab Vs. A.K. Raha, AIR 1964 Calcutta 418 ( DB).
16. In case titled as Interarch Building Products Ltd. Vs. Aurngabad Electrical Pvt. Ltd, I.A.No.20921/2011 in CS (OS) No.942/2009decided on 07.02.2012, Hon'ble High Court, Delhi has observed that in a suit for price of goods sold and delivered which also the suit for breach of contract on the part of the defendant by not paying the price of the goods in terms of agreement between the parties, the cause of action, Suit No40/14 ....8/15 9 within the meaning of Section 20 (c ) of CPC arises at the following places :
a) The place where the contract was made.
b) The place where the contract was to be performed which in such a contract would mean the place where the goods were delivered to the purchaser and
c) The place where the money in performance of the contract was payable, expressly or impliedly.
17. The onus to prove this issue is upon the plaintiff. The defendant has not led any evidence in his defence. The Ld. counsel for defendant is relying upon the evidence as led by plaintiff. On perusal of evidence on record, the PW1 has categorically deposed in his examination in chief that Sh. P. V. Swamy, head operations (Southern Region) had come to the registered office of the plaintiff company, with the typed agreement based on previous discussion on a non judicial stamp paper of Rs. 100/. The agreement was containing the discussed terms and conditions. The said document was brought by Sh. P. V. Swamy on dated 06.06.2008. The PW1 further deposed that he was present at the time of signing of the document Ex. PW1/3. PW2 Mr. Patrick Tschirky has also deposed in his examinationinchief that Mr. P. V. Swamy had signed the document Ex. PW1/3 in his presence at Delhi, at the Head Office of the plaintiff company. Nothing has come in his cross examination which rebut his testimony regarding execution Suit No40/14 ....9/15 10 of the document Ex. PW1/3 at Delhi.
18. So, it has been proved on record that document ExPW1/3 the agreement was executed at Delhi . The purchasing of stamp paper and typing thereon is immaterial because a document can be purchased from anywhere throughout the India and it can be typed anywhere in India. It has not brought to my notice by the defendant, if a stamp paper has been purchased from Tamil Nadu, it has to be typed and executed in Tamil Nadu only. The PW1 and PW2 have categorically deposed that the document Ex. PW1/3 was executed at Delhi. The defendant has not examined Sh. P. V. Swamy who has signed the document Ex. PW1/3 on behalf of defendant to rebut the assertion and testimony of PW1 & PW2 regarding the execution of document Ex. PW1/3 at Delhi at the office of the plaintiff.
19. Even otherwise, the plaintiff has also placed on record the document Ex. PW1/4 to Ex. PW1/7, which are invoices raised by the plaintiff company against the defendant for the service provide to it. These documents have been raised from the office of the plaintiff situated at Cannaught Place, New Delhi and it has been asserted and deposed by the witnesses of plaintiff that same were received by the officials of the defendant. Though the objection has been taken by the defendant regarding mode of proof of these document but in cross Suit No40/14 ....10/15 11 examination of PW1 there is no suggestion that these documents are forged and fabricated one. The defendant has not rebutted the fact that these invoices were not received by the official of defendant by adducing cogent evidence. The objection was only with respect to the photocopy being placed on record by the plaintiff as argued at final stage. Since, the defendant has not rebutted that these documents are forged and fabricated one, the Court can safely take congnizance of these documents Ex.PW1/4 to Ex.PW1/7. Through these documents, the payment has been demanded by the plaintiff at Delhi Office, obviously. In view of the facts which has been proved on record and considering the settled law, I am of the view that the agreement was executed at Delhi and payment was to be made, against the services provided by the plaintiff to the defendant at the head office of plaintiff at Delhi. The part cause of action has also been arose at Delhi within the territorial jurisdiction of this Court. Hence, this Court has the territorial jurisdiction to entertain the present suit. The issue disposed off accordingly.
20. ISSUE NO.2 :
2. Whether the plaintiff is entitled to the decree in the sum of Rs.10,73,578/ or any part thereof as prayed ? OPP AND Suit No40/14 ....11/15 12
21. ISSUE NO.3:
3. Whether the plaintiff is entitled to interest if so, at what rate, for what period and on what amount ? OPP .
22. Both the issues have been dealt together being interrelated. The onus to prove these issues were on the plaintiff. The execution of the document Ex.PW1/3 is not in dispute between the parties. The defence of the defendant is that plaintiff has not provided the 100 sq. ft space in BMA area as per terms and condition of Ex.PW1/3. Question arises whether the plea taken by the defendant is acceptable or not. The plea is not acceptable because the defendant has not mentioned the area which was provided to it by the plaintiff in BMA. It is also not mentioned how much space was short from 100 sq. ft. whether it was 90 sq. ft. of even less than it. The defendant could have approach the Court of Law to get specific performance of agreement Ex.PW1/3. The plea is baseless and sham. The defendant has itself placed on record the document email dt.27.08.2008 and email dt.10.11.2008 which has been exhibited as Ex. PW1/17 and Ex.PW1/18. Through these documents the defendant has stated that they are unable to continue the business relationship with plaintiff during the month of September 2008 and further informed that they are keeping the operation of business in abeyance at Bangalore Airport as Decan Airways has been merged with Suit No40/14 ....12/15 13 King Fisher Airlines and talks are going on with King Fisher for the starting of the business of defendant. The question arises whether the merger of Deccan Airways with Kingfisher Airlines makes the agreement between plaintiff and defendant frustrate. As per Agreement Ex.PW1/3,clause (g) three month's notice was required to be given for termination of Agreement/Contract. So, the plea of the defendant that Contract was became frustrate is not acceptable. Firstly, in general when a company is over taken by another company the assets and liabilities of the company overtaken by another company are also taken over. It is not pleaded on behalf of defendant that assets and liabilities of Deccan Airways were not taken over by the King Fisher Airlines. It can be perused safely debt and liabilities of Deccan Airways were taken over by the Kind Fisher Airlines. And, if there was a contract between the defendant and Deccan Airways, as stated by defendant that the contract of Deccan Airways with third parties (defendant) ipso facto cannot be terminated. Secondly, the Contract can be terminated only by giving a notice of three month in advance as per clause (g) of agreement Ex. PW1/3.
23. The plaintiff has also examined PW3 Sh. Sanjay Sawant who has placed on record the document Ex.PW3/1 which is a print out of TDS reconciliation analysis and correction enabling system Suit No40/14 ....13/15 14 TRACES System, Centralized Processing Cell in terms of Section 203 (AA) of the Income Tax Act 1961 published by the Government of India, Income Tax Department upto dated 18.12.2013. Through this document, the defendant itself has admitted the deductions of TDS on the transaction with plaintiff and has shown deductions of tax on the amount of Rs.2,50,000/, Rs. 205442 and Rs.2,50,000/. These deductions is in consonance with the documents Ex.PW1/4 to Ex.PW1/7 i.e. invoices raised by plaintiff. The document can be safely relied upon by the Court because defendant has not took any objection to this document. So, in totality, I am of the view that the plaintiff is entitled to recover the amount of invoices i.e. Rs.2,30,000/ for the month of June 2008, Rs.2,80,000/ for the month of July 2008, Rs.2,80,000/ for the month of August 2008 and Rs.2,80,000/ for the month of September 2008, and the total of which amount comes to Rs. 10,73,578/.
24. The plaintiff has claimed interest @ 24% p.a. but in the evidence plaintiff has unable to prove that plaintiff has sustained special damages which required to be compensated by granting him higher rate of interest. But, keeping in view the fact and circumstances and settled proposition of law, being business transaction, the plaintiff can be compensated by granting interest on principal amount. The interest @ Suit No40/14 ....14/15 15 9 % p.a. is awarded in favour of plaintiff and against the defendant from the date of suit till its realisation. Issue nos.2 & 3 are decided accordingly.
25. RELIEF The suit of the plaintiff is decreed for a sum of Rs. 10,73,578/with the interest @ 9 % p.a. in favour of plaintiff and against the defendant from the date of suit till its realization. The cost of the suit is also awarded in proportionate. Decree sheet be prepared accordingly. The file be consigned to the Record Room.
Announced in the open court (JAGDISH KUMAR)
today i.e on 06.09.2014. ADJ06 (WEST)/DELHI
TIS HAZARI COURTS
Suit No40/14 ....15/15