Delhi District Court
Ms Harpreet Kaur vs P P Telecell Marketing Pvt Ltd And Ors on 27 January, 2026
IN THE COURT OF MS.PREETI AGRAWAL GUPTA,
DISTRICT JUDGE (COMMERCIAL COURT)-02,
WEST, TIS HAZARI COURTS, DELHI
"AMONGST 20 OLDEST CASES &
MORE THAN 5 YEAR OLD CASE"
CS (COMM) No. 117/2020
CNR NO.DLWT0014932020
Mrs. Harpreet Kaur
Proprietor of Trijivi Enterprises,
J-5/52A, Shop No.4 and 5,
Rajauri Garden, New Delhi-110027
...Plaintiff
Versus
M/s. P.P. Telecell Marketing Pvt. Ltd.
Through its Director/Chairman
12/401, Outer Ring Road,
Sunder Vihar, Paschim Vihar,
New Delhi-110087. ...Defendants
SUIT FOR RECOVERY OF Rs.50,31,950/- (RUPEES FOURTEEN
LAKHS THIRTY NINE SIX HUNDRED SEVENTY TWO ONLY )
ALONGWITH PENDENTELITE & FUTURE INTEREST @24%
P.A. FROM THE DATE OF FILING OF THE SUIT TILL ITS
REALISATION.
Date of institution of Suit : 24.02.2020
Date of Assignment to this court : 25.02.2020
Date of hearing of final argument : 14.01.2026
Date of Judgment : 27.01.2026
JUDGMENT
1. By way of present judgment, I shall conscientiously adjudicate upon the Suit of plaintiff for Recovery of Rs. 50,31,950/- alongwith interest @ 24% per annum pendentleite and future, from the date of filing of the suit till its realisation alongwith costs of the Suit. PREETI Digitally signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 1/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025
2. As derived from the pleadings, the concise facts of the plaint are being summarised hereunder.
2.1 The plaintiff is the proprietor of Trijivi Enterprises, engaged in the sale and distribution of cell phones, enjoying a good reputation and market demand for many years. 2.2 Vide e-mail dated 18.11.2016, the plaintiff expressed intent for distributorship of Gionee Cellular Phones from the defendant. Thereupon, vide e-mail dated 29.11.2016, defendant company offered the plaintiff, distributorship of Gionee cellular phones for West Delhi region, which the plaintiff duly accepted, vide e-mail dated 29.11.2016.
2.3 As per the agreement, the plaintiff made advance payments to the defendant from time to time, against which handsets were supplied and the defendant also agreed to provide target-based incentives and take back unsold handsets. In view of frequent price drops, the defendant also agreed to adjust any excess amount paid by the plaintiff, in subsequent bills for future consignments. Owing to the plaintiff's excellent sales performance, the defendant also awarded incentives for achieving the prescribed sales targets. 2.4. The plaintiff maintained a running statement of account reflecting all sales, returns, price-drop adjustments, incentives, and payments, for the period 01.04.2016 to 18.02.2020. As per the statement of account, a total sum of Rs.35,43,627/- is due and payable by the defendant to the plaintiff towards various pending claims, detailed as under:-
Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 2/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 Sl. Pending Claims Amount (Rs.) No.
1. JAN MONTH LINERITY CD 2017 90,000/-
2. SEP OCT TARGET ACHIEVEMENT 2,86,394/-
(DIWALI)
3. A1 LITE PRICE DROP 19 DEC 1,82,590/-
4. EOL SUPPORT 1 JAN TO 31 JAN (F103, P7 2,59,000/-
MAX AND S6S)
5. NOV DEC,JAN, SEB PAID BRANDING 4,10,077/-
6. PRICE DROP X1S 15.1.18 2,43,133/-
7. S10 LITE SPIKE 17 JAN TO 31 JAN 7,000/-
8. P7 MAX PRICE DROP 26 JAN 2018 96,031/-
9. 5% CED TARGET ACHIEVEMENT FOR 41,872/-
JAN 18
10. M7 POWER DEMO 1,19,000/-
11. S10 LITE DEMO 16,000/-
12. DOA AND OCD CREDIT NOTE 3,49,015/-
13. VAT /GST DIFF 1,54,175/-
14. X17 PRICE DROP 13.3.18 2,55,740/-
15. A1 LITE SPIKE 1000/ PCS EFF. FROM 10 19,040/-
TO 18
16. PURCHASE RETURNED 5,61,088/-
17. NON ACTIVATED AND DOA HANDSET 4,53,472/-
RETURNED TOTAL Rs.35,43,627/-
2.5 By way of e-mail dated 06.03.2018, the plaintiff showed her inability to continue with the business further and as per the assurance given by the defendant, requested settlement of all pending claims. Thereafter, the plaintiff made repeated calls, visits, and sent Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 3/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 several e-mails seeking clearance of outstanding dues, but the defendant avoided payment on one pretext or another. 2.6 Vide email dated 03.01.2019, the defendant admitted liability of Rs.12,55,470/- only, towards the plaintiff against the total outstanding amount of Rs.35,43,627/-. While determining the admitted liability of Rs.12,55,470/-, the defendant rejected several transaction entries as "Not Qualify as per plan" to avoid payment of the outstanding dues.
2.7 Despite repeated calls, e-mails, and personal visits, the defendant failed to pay the outstanding dues, making false assurances and withholding even the admitted amount. The defendant deliberately withheld Rs.35,43,627/- and is liable to pay interest @24% per annum as per prevailing market practice. Accordingly, the defendant is legally bound to pay Rs.50,31,950/-, comprising Rs.35,43,627/- as principal and Rs.14,88,323/- as interest. 2.8 After exhausting all remedies, the plaintiff issued a legal notice dated 05.08.2019 demanding payment of Rs.35,43,627/- with interest @24% per annum. Despite receipt, the defendant made no payment and sent a false reply through Counsel. 2.9 The cause of action for filing this suit is claimed firstly on 06.03.2018 when the plaintiff sought settlement upon discontinuing business and continued on subsequent demands for dues. It further arose on 03.01.2019 upon the defendant's admission of liability to pay Rs.12,55,470/- to the Plaintiff against the total outstanding amount of Rs.35,43,627/- and on 05.08.2019 upon issuance of the legal notice calling upon the defendant to make payment of outstanding dues. Cause of action is still continuing and Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 4/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 subsisting, as the defendant has failed to pay the outstanding amount. It is claimed that the suit has been filed within limitation.
2.10 Present Court has the territorial jurisdiction to try the present suit as the Defendant Company is having its Registered Office and carrying its business, within the territorial jurisdiction of this Court.
2.11 It is prayed for passing Decree for a sum of Rs.35,43,627/- as principal and Rs.14,88,323/- as interest @24% per annum from 06.03.2018 to 06.11.2019, totaling Rs.50,31,950/-, in favour of the Plaintiff and against the defendant with pendentelite and future interest @24% per annum from the date of filing of the suit till the date of realisation.
3. It is pertinent to mention that vide orders dated 10.02.2022, application U/S 14 of Insolvency & Bankruptcy Code, 2016 R/W Section 151 CPC filed on behalf of defendant was allowed and suit was adjourned sine-die, to be revived as and when insolvency proceedings were concluded on the application moved by the plaintiff.
4. Vide orders dated 01.06.2024, application U/S 151 CPC filed on behalf of plaintiff for revival of the present Suit was allowed, with following observations:-
"...It is an undisputed fact that plaintiff had filed the present Commercial Suit on 24.02.2020 and that the order appointing IRP was passed on 27.05.2020 which was subsequent to the institution of the commercial suit by the plaintiff. It is also not in dispute that vide order dated Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 5/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 08.07.2021, application of M/s Park Network Pvt Ltd. to withdraw CIRP against defendant no.1 was allowed and that the order of the Learned Predecessor of this court adjourning the present commercial suit sine die was passed on 10.02.2022.
...Since, the present Commercial Suit was filed by the plaintiff before the order dated 27.05.2020 was passed by the Hon'ble NCLT coupled with the fact that CIRP proceedings stood withdrawn on 08.07.2021, the contentions of Learned counsel for defendants are rejected. Consequently, the present suit is revived and restored to its original number i.e. 117/2020..."
5. Vide orders dated 25.01.2025, application U/O VIII Rule 1 CPC filed on behalf of defendant seeking condonation of delay in filing Written Statement, was allowed. Vide orders of even date, defendants no.2 to 4, being Directors of defendant no.1, were deleted from array of parties.
6. The crystalised facts in defence and contest by defendant, as averred in the Written Statement, are as under:
6.1 As per the averments in the Written Statement, the suit of the plaintiff has been outrightly denied. There are several legal objections raised by the defendant, interalia being non-
maintainability of the suit, as the defendant acted only as an agent of M/s Syntek (HK) Technology Ltd. and no action can be filed by or against an agent, under Section 230 of the Indian Contract Act, 1872; The plaintiff has not come with clean hands; all claims were allegedly settled by the defendant, including a payment of Rs10 lakh, and the suit is based on an inadvertent accounting error qua email dated 05.01.2019, which was later corrected vide email dated Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 6/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 12.02.2019. The plaintiff allegedly filed the suit with malafide intent to retain an excess payment of Rs.39 Lakh; The suit is defective under the Commercial Courts Act, as the Statement of Truth is not in the prescribed format.; Suit is based on self-declarations by plaintiff, without any documentary evidence for the claimed amounts.; suit is without evidence, as the plaintiff failed to provide proof/evidence to substantiate achievement of the Schemes, for which claims are made; suit is not maintainable against defendant nos. 2 to 4 (directors/shareholders), as a company is a separate legal entity and directors cannot be personally held liable for corporate debts.; Suit lacks jurisdiction because the moratorium under IBC, 2016 was in effect from 27.05.2020, making other courts functus officio and any claim(s) should have been raised before the Interim Resolution Professional.; suit is barred by limitation and is liable to be dismissed.
6.2 On merits, Defendants have outrightly denied any outstanding due against defendant, in favour of the plaintiff, as alleged. It is averred that the defendant, as an agent of M/s Syntek (HK) Technology Ltd ("Gionee" phones), offered the plaintiff distributorship. The plaintiff agreed to become a dealer at the agent's request. The defendant's role was only limited to delivering mobile sets and facilitating payments under direction of principle company M/s Syntek (HK) Technology Ltd., while the dealer/defendant was to earn profits from sales.
6.3 It is denied that the defendant agreed to pay target-based incentives or take back unsold handsets, submitting that being merely an agent of the principal company, the defendant's role was limited to Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 7/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 conveying schemes, submitting dealer claims to the principal company, and facilitating payments, only if approved by the principal company. The defendant had no authority to approve or confirm any dealer claims. It is submitted that the plaintiff must provide details of the schemes under which incentives were awarded by the principal company.
6.4 It is averred that the running account allegedly maintained by the plaintiff, is self-declaratory and cannot alone establish liability against defendant. The plaintiff has provided no evidence of achieving the claimed schemes, making the suit meritless, legally unsustainable, and liable to be dismissed. The claimed amount of Rs.35,43,627/- is disputed, as no proof/evidence has been provided to substantiate achievement of the alleged schemes or the pending claims. Accordingly, the suit is meritless and bad in law.
6.5 It is averred that the plaintiff's claims were approved by the principal company and Rs.10 Lakh was paid on 01.08.2018 via RTGS. An inadvertent e-mail dated 05.01.2019 overlooked this payment, which the plaintiff later acknowledged. The defendant corrected the error on 12.02.2019 by sending the complete ledger through e-mail, which the plaintiff did not dispute. Now, the plaintiff cannot rely on the e-mail dated 05.01.2019 to support its claim. 6.6 It is vehemently denied that the defendant withheld Rs.35,43,627/-, as the entire due payment was released to the plaintiff on 01.08.2018 via RTGS stating that the plaintiff's claim is without merit and contrary to the facts. It is denied that the defendant is legally bound to pay Rs.50,31,950/- with pendente-lite or future Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 8/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 interest.
6.7 It is reiterated that no amount is due from the defendant, further submitting that while Rs.10 Lakh was paid on 01.08.2018 against a claim of Rs10,33,836/-, a subsequent review, after receipt of the legal notice revealed that Rs.39 Lakh was inadvertently overpaid to the plaintiff. It is asserted that the plaintiff filed the suit with malafide intent to retain this excess amount, making the suit false, frivolous, and devoid of any entitlement to recovery. 6.8 It is submitted that the suit is defective and incomplete under the Commercial Courts Act, as the Statement of Truth filed on behalf of plaintiff is not only defective but is also incomplete and the suit is therefore, liable to be dismissed. 6.9 It is denied that any cause of action arose in favour of the plaintiff. It is asserted that the defendant, being merely an agent of M/s Syntek (HK) Technology Ltd., cannot be sued under Section 230 of the Indian Contract Act. Moreover, since Rs.39 Lakh was already overpaid to the plaintiff, no cause of action exists in favour of the plaintiff and the suit is liable to be dismissed, with exemplary costs.
7. Replication was also preferred by the plaintiff to the Written Statement, wherein contents of the plaint have been reiterated and the averments and allegations in the written statement have been denied and are being briefly summarised as under:
7.1 It is denied that the suit is not maintainable or liable to be dismissed under Section 230 of the Indian Contract Act, 1872 , as the said provision is inapplicable to the facts of the present case. It is Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 9/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 averred that there was no privity of contract between the plaintiff and M/s Syntek (HK) Technology Ltd. It is denied that the defendant was merely an agent of the said company, submitting that the distributorship of Gionee cellular phones was offered by the defendant to the plaintiff and after discussions and mutual consent, the same was offered vide email dated 29.11.2016 and accepted by the plaintiff on the same date.
7.2 It is vehemently denied that no amount is payable by the defendant to the plaintiff or that the claims were settled by defendant no. 4 on behalf of M/s Syntek (HK) Technology Ltd. It is further denied that the plaintiff failed to submit mandatory documents or that the entire claim was settled by payment of Rs.10 Lakh through RTGS, submitting that no details of the alleged total claim have been disclosed by the defendant and that the account was never fully settled.
7.3 It is vehemently denied that any inadvertent mistake occurred in the defendant's accounts or that emails dated 05.01.2019 and 12.02.2019 were written due to such mistake or accepted by the plaintiff, submitting that the documents and emails exchanged between the parties clearly establish the defendant's liability to pay the outstanding dues claimed in the plaint. The plaintiff repeatedly demanded payment through emails dated 06.03.2018, 06.04.2018, 02.05.2018, 27.08.2018, 08.09.2018, 22.09.2018 and 02.10.2018, and the defendant acknowledged its liability and assured payment through emails dated 08.03.2018, 07.04.2018, 16.08.2018, 03.01.2019 and 05.01.2019. It is further averred that the defendant, vide emails dated 03.01.2019 and 05.01.2019, admitted liability of Digitally PREETI signed by CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. AGRAWAL PREETI 10/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 Rs.12,55,470/- payable to the plaintiff. It is vehemently denied that any excess payment of Rs.39 Lakh was made or that the suit has been filed to avoid repayment or with any ill intent.
7.4 It is denied that the suit has been filed on the basis of self-declaratory statements without any evidence, submitting that the plaintiff has placed on record various documents establishing the defendant's liability to pay the outstanding dues.
7.5 It is denied that the suit is not maintainable or that the plaintiff failed to place documents showing achievement of the respective schemes or entitlement to scheme payouts, submitting that the plaintiff has placed on record relevant documents, including e-
mails wherein the defendant itself acknowledged the applicable schemes and agreed to make payment.
7.6 It is averred that this court has the jurisdiction has the jurisdiction to entertain the present suit and that the present suit is not affected by passing of the order under Provision of IBC 2016 as there is no Moratorium operating, as alleged, praying for decreeing the Suit in his favour and against the defendant.
8. On completion of pleadings, following issues were arrived at, to be adjudicated upon by the Court:
1. Whether the plaintiff is entitled to recovery of principal amount of Rs.35,43,627/- ? OPP.
2. Whether the plaintiff is entitled to interest, if any, if so, at what rate and for which period ? OPP.
3. Whether the entire claim of plaintiff was settled by the Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 11/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 defendant by making a payment of Rs.10,00,000/-?
OPD.
4. Whether the Suit is not maintainable in terms of Section 230 of Contract Act ? OPD
5. Relief.
9. Vide orders dated 08.05.2025, application U/S 151 CPC filed on behalf of plaintiff seeking appointment of her husband S. Jagmohan Singh as SPA, was allowed.
10. Plaintiff in support of its case got examined the sole witness Sh. S. Jagmohan Singh, SPA of plaintiff, as PW1 who tendered his evidence by way of affidavit Ex.PW1/A bearing his signatures at Point A and Point B. By way of affidavit of chief- examination, the plaintiff witness has deposed as per the averments in the plaint and has relied upon documents, detailed as under:-
SL DOCUMENT(S) EXHIBITED AS
NO.
1 The power of attorney dated 05.05.2025 Ex.PW1/1.
in favour of PW1
2 Email dated 18.11.2016 by plaintiff to Ex.PW1/2.
defendant
3 Email dated 29.11.2016 by defendant Ex.PW1/3.
company to plaintiff (33)
4 Email dated 29.11.2016 by plaintiff to Ex.PW1/4.
defendant (34)
5 Statement of account maintained by the Ex.PW1/5.
plaintiff for the period w.e.f. 01.04.2016 to 18.02.2020 (42, 17-23) 6 Email dated 06.03.2018 by plaintiff to Ex.PW1/6.
defendant (24) Digitally PREETI signed by CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. AGRAWAL PREETI 12/66 GUPTA AGRAWAL GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 7 Email dated 06.04.2018 by plaintiff to Ex.PW1/7.
defendant (49) 8 Email dated 02.05.2018 by plaintiff to Ex.PW1/8.
defendant (56) 9 Email dated 28.08.2018 (sic 27.08.2018) Ex.PW1/9 by plaintiff to defendant (43) 10 Email dated 08.09.2018 by plaintiff to Ex.PW1/10. defendant (44) 11 Email dated 22.09.2018 by plaintiff to Ex.PW1/11 defendant (45) 12 Email dated 02.10.2018 by plaintiff to Ex.PW1/12. defendant (36-39) 13 Email dated 08.03.2018 by defendant to Ex.PW1/13. plaintiff (49) 14 Email dated 07.04.2018 by defendant to Ex.PW1/14. plaintiff (53) 15 Email dated 16.08.2018 by defendant to Ex.PW1/15 plaintiff (40-41) 16 Email dated 03.01.2019 by defendant to Ex.PW1/16. plaintiff (60) 17 Email dated 05.01.2019 by defendant to Ex.PW1/17. plaintiff (61) 18 Copy of legal notice dated 05.08.2019 Ex.PW1/18.
(66)19 Postal receipts(72) Ex.PW1/19(Colly.) 20 Reply dated 27.08.2019 by defendant Ex.PW1/20. through its Counsel (73) 21 Certificate under Section 65 B of Indian Ex.PW1/21 Evidence Act (14) 10.1 PW1 namely Sh. S Jagmohan Singh, has been cross- examined by ld. Counsel for the defendant, at length. During cross- examination of PW-1 by ld. Counsel for defendant, PW-1 deposed that he is a distributor of mobile phones and accessories in West Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 13/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 Delhi, carrying on business under the name and style of Trijivi Enterprises. The defendant personally approached him and offered distributorship for the West Delhi region. The witness was shown email dated 18.11.2016/29.11.2016 (Ex.PW1/3) and asked about the date on which the distributorship agreement was entered into with the defendant. The witness stated that the distributorship was agreed on 29.11.2016 through email (Ex. PW1/3) and no written agreement was executed. The witness further stated that he cannot say whether any written agreement was executed or placed on record. PW1 deposed that he used to manage the business of Trijvi Enterprises and admitted that it is not stated in the plaint, replication, or affidavit in evidence that he was managing the business. He volunteered that he and his wife used to communicate with the defendant company regarding sales, purchases, billing, credit notes, and related matters. On specific question, PW1 responded after seeing the email dated 13.02.2018 that both he and his wife were in communication with defendant (e-mail dated 13.02.2018, though not formally tendered or exhibited, becomes a relevant and admissible document.) 10.2 PW1 further testified in his cross-examination that plaintiff became the distributor of mobile phones manufactured under the name "Gionee", expressing lack of knowledge that defendant company is not the manufacturer of Gionee phones. He admitted that defendant company used to give monthly targets scheme to the plaintiff and plaintiff was entitled for the incentive upon achieving the said targets, though, no such documentary proof placed on record. On being asked as to the agreement entered by the defendant to take back the unsold goods/stock, PW-1 relied upon email (Ex. PW1/14) Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 14/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 dated 07.04.2018. The witness admitted that there was no document on reord to show that that any price drop in Gionee phone was to be borne by the defendant.
10.3 PW1, in cross-examination admitted that Claim Nos. 1, 2 and 9 were related to the incentive schemes, claim No.3, 6, 8, 14 were related to price drop of the handsets; claim No. 5 was related to branding of the company; claim No. 12, 16 and 17 were related to the defective material and purchase return; claim No. 4 was related to the EOL (End of Life) claim of the handsets; claim No. 7, 10, 11, 15 were related to general schemes; claim No.13 was related to VAT/GST difference. PW1 admitted again that no document was placed on record to show that there was a drop in the price of Gionee handsets or that the defendant used to adjust the difference in the price drop. He tried to explain that the entire process was available on the portal of defendant's website including the Ledger account. He denied that the said portal was of M/s Syntek (HK) Technology Ltd. which was manufacturing mobile phones under the brand name "Gionee" explaining that the name of defendant company was also mentioned along with the name of parent company M/s Syntek (HK) Technology Ltd. PW1 deposed that plaintiff could only upload the detail of the sale on the portal, rest of the calculation was to be done by the defendant company and that the defendant company used to issue credit notes against price drop. He admitted that no such credit note issued by defendant, were placed on record and admitted that the defendant company used to verify the claim before issuing credit note.
Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 15/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 10.4 On being cross-examined on the aspect of branding claim of the plaintiff, PW1 deposed that defendant company used to give assurance to the retailers that a certain amount would be paid to the retailers upon displaying its name on the hoardings/banners of their stores, which amount was to be paid through the plaintiff. PW1 admitted that no such document of the defendant assurance against branding claim, was placed on record and further deposed that the plaintiff did not receive any amount from defendant company which could be passed to the retailers stating that the same was on monthly basis.
10.5 During further cross-examination, PW1 deposed that the claim of difference in VAT/GST is claimed on the stock appearing on the portal with regard to the plaintiff and the retailers, pertaining to the period when the regime of VAT was converted into GST. PW1 admitted that GST return were filed on quarterly basis and earlier plaintiff was filing VAT return, as applicable, further admitting that no document/VAT or GST return was placed on record to establish that the plaintiff paid the differential amount of tax to the government due to change of regime from VAT to GST. He further admitted that there was no such document on record to establish as to on which stock/phone, plaintiff paid the differential tax to the government. 10.6 PW1 was further cross-examined in respect of claim Nos. 7, 10, 11 and 15, to which PW1 deposed that defendant company used to provide a particular period to the retailers to sell the handsets at the fixed retail price and in addition used to pay an extra amount to retailers to promote sales of those handsets, which scheme, in general terms, is called 'Spikes'. He admitted that no such 'Spikes Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 16/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 scheme' was filed on record, though explaining that there were entries of such Spikes scheme in the Ledger account of the defendant. PW1 further admitted that he had not placed any document on record to show that the plaintiff had paid any amount claimed under claim Nos. 7, 10, 11 and 15 to the retailers under 'Spikes scheme' or if he ever demanded the same from defendant supported with documents of payment, trying to explain that this entire information was reflected on the portal of defendant company. 10.7 PW1 deposed that the EOL support claim No.4 was being claimed for the month January 2017. He further deposed that the plaintiff relinquished the distributorship of the defendant on 06.03.2018. During further deposition, PW1 stated that defendant used to decide the issue of schemes such as Spikes, price drop, EOL of any handset, branding, defective material, purchase return and difference of VAT/GST and the same was reflected on the portal of defendant company. He placed reliance on email dated 13.02.2018 purportedly issued by the plaintiff to the defendant pertaining to the request for settlement of claim of Rs.40 Lakhs stating that the entire claim included the claim of EOL, though admitting that there was no reference to any such detail of EOL handsets in the said email dated 13.02.2018.
10.8 PW1 specifically denied that he was not authorised to tender evidence on behalf of the plaintiff or that he was not aware of facts of the case. He reasserted the claim of the plaintiff and denied the suggestion that defendant was the agent of M/s Syntek (HK) Technology Ltd. He denied that the electronic record placed/relied by him was not admissible for want of requisite Certificate U/S 63 of Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 17/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 BSA or that that the ledger account filed by plaintiff was a false document. PW1 categorically denied that defendant settled all claim of the plaintiff, after approval of the same by parent company i.e. M/s Syntek (HK) Technology Ltd. He reasserted the claim of the plaintiff. The Plaintiff did not examine any other witness and the plaintiff's evidence was closed.
11. IN DEFENCE EVIDENCE, one sole witness Sh.Rajesh Mahajan, one of the Directors of defendant no.1, has been examined as DW1, who tendered his evidence by way of affidavit Ex.DW1/A bearing his signatures at Point X and Point Y. By way of affidavit of chief-examination, the defendant witness has deposed as per the averments in the Written Statement and has relied upon documents, detailed as under:-
SL DOCUMENT(S) EXHIBITED AS
NO.
1 Board Resolution dated 10.09.2024 Ex.DW1/1
(28)
2 Copy of email dated 12.02.2019 Ex.DW1/2 (Colly.)
alongwith the ledger account
3 Certificate under Section 65 B of Ex.DW1/3.
Indian Evidence Act
11.1 DW1 namely Sh. Rajesh Mahajan, has been cross-
examined by ld. Counsel for the plaintiff, at length. During cross- examination, witness was confronted by ld. Counsel for plaintiff, with e-mails which are accordingly placed on record as exhibits Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 18/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 during cross-examination, as under:-
SL DOCUMENT(S) EXHIBITED AS
NO.
1 E-mail dated 06.02.2018 Ex.DW1/P1
2 E-mail dated 12.02.2018 Ex.DW1/P2 (colly)
3 E-mail dated 05.01.2017 Ex.DW1/P3
4 E-mail dated 19.03.2018 Ex.DW1/P4
5 E-mail dated 13.01.2018 Ex.DW1/P5
6 E-mail dated 04.01.2018 Ex.DW1/P6
11.2 DW1 deposed that he is a business man, engaged in the
business of furniture and electronics supply, being one of the Directors of the defendant company, which is involved in the business of supplying and distributing of different electronics and telecom products. On being specifically asked about the claimed agency of the defendant under M/s Syntek (HK) Technologies Ltd., DW1 deposed that the defendant took material from the principal company and sold it to their channel partners, stating that channel partners are the partners of principal company. However, DW1 again clarified that defendant was the agent between the principal company and channel partners. He admitted not having placed any document or agreement executed between defendant and M/s Syntek (HK) Technologies Ltd. to show their relationship. He denied that defendant company had itself appointed channel partners or that the defendant company was only dealing exclusively with all the channel partners, including the plaintiff. On being asked, if defendant company had independent business, DW1 deposed that defendant was dealing for various products and for specific products i.e. Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL GUPTA 19/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 telecom products, defendant was working as agent and that defendant company filed all business returns for the profit and loss with respect to telecom products. DW1 admitted that defendant company used to purchase telecom products from M/s Syntek (HK) Technologies Ltd. and used to give the same to their channel partners. He denied that defendant company was not doing independent business for telecom products.
11.3 DW1 denied that defendant company used to give incentive to its dealers on achieving targets as in the case of plaintiff stating that Principal company used to offer incentive for their distributors and dealers. He admitted that there was no document placed on record to show that defendant company was not dealing financially with its channel partners, Distributors, dealers or that M/s Syntek (HK) Technologies Ltd. was dealing with them. DW1 deposed that plaintiff company was directly dealing with M/s Syntek (HK) Technologies Ltd. in many cases, though admitting that he did not place any document on recod to this effect. DW1 denied that the plaintiff never had any financial transactions with M/s Syntek (HK) Technologies Ltd. or that all the financial transactions of the plaintiff were always with defendant company only.
11.4 DW1 denied that defendant company used to send various incentive schemes, price drop schemes, branding schemes and other general schemes to plaintiff. DW1 explained that maximum schemes came from company portal and few schemes through defendant company's email. DW1 denied that the emails confronted to the witness vide Ex.DW1/P1 to P6 reflected the various offers rendered to the plaintiff by the defendant company. He denied that Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 20/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 defendant company was maintaining and making all entries to the portal deposing that the portal was handled by Principal Company M/s Syntek (HK) Technologies Ltd. and login access was given to the plaintiff for their use. DW1 deposed that Defendant's company role was only to maintain the transactions between Principal company and defendant company and plaintiff used to enter their transactions by herself. DW1 denied that all entries to the portal were used done by defendant company only or that all payments for the incentives etc. of the plaintiff were made by the defendant company only or that plaintiff never received any payment from the M/s Syntek (HK) Technologies Ltd.
11.5 DW1, during further cross-examination admitted that no document was placed on record to show that M/s Syntek (HK) Technologies Ltd. used to make the payment to the plaintiff and not the defendant company, trying to explain that the principal company portal shows that the plaintiff used to enter all its commercial transactions like sales, purchase, incentives, target incentives and all kind of claims through the portal and maximum claims used to be passed by principal company and approved claims sent to defendant for further disbursement. DW1 volunteered to add that all claims used to be processed and passed by the principal company. 11.6 DW1 was confronted with its own document Ex.DW1/2 (Statement of account), to which DW1 admitted that all payments reflected therein, were made by made by defendant company. DW1 tried to explain that all the payments were made on instructions and approval on behalf of Principal Company, though admitting that no document placed on record to show any such instructions or approval Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 21/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 from the Principal Company. DW1 further admitted that no document was placed on record to show that M/s Syntek (HK) Technologies Ltd. was responsible for all payments/financial transactions. 11.7 On being cross-examined if plaintiff could claim directly from M/s Syntek (HK) Technologies Ltd., DW1 answered in affirmative suggesting that emails were issued by the plaintiff with copy to M/s Syntek (HK) Technologies Ltd. for claims. 11.8 On further cross-examination, DW1 admitted that on 01.08.2018 a payment of Rs. 10,00,000/- (Ten lacs) was made by defendant company, stating that the same was made on approval from M/s Syntek (HK) Technologies Ltd. DW1 admitted that no document was placed on record to show any approval by M/s Syntek (HK) Technologies Ltd.
11.9 DW1 denied that reply for Legal Notice, dated 27.08.2019 (Ex.PW1/20) from the defendant, was false or that it did not state that an excess payment of Rs.39 Lakhs was made by defendant therein. He admitted that no Suit of Counter-Claim seeking recovery of alleged amount was filed by the defendant company against the plaintiff. DW1 also admitted that there was no document to show payment of excess amount of Rs.39 Lakhs in favour of the plaintiff. Plaintiff, though denying that the said claim of defendant company was false. DW1 tried to explain that the Principal Company in its reconciliation of account/audit had stated that an amount of Rs.39 Lakh had been paid in excess to the plaintiff, though admitting that no such document allegedly generated from the Principal Company for reconciliation of account of the plaintiff was placed on record by the defendant. DW1 deposed that the Principal Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 22/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 Company had closed in the year 2018. He denied any outstanding dues payable to the plaintiff. Defendant did not examine any other witness and the DE was closed.
12. Arguments on behalf of the parties have been heard at length and the entire record including the pleadings have been perused. The applicable law has been duly considered. The entire evidence, both oral and documentary, have been appreciated. Issue- wise findings are being discussed hereunder:-
13. Keeping in view that Issue no.4 pertains to the maintainability of the suit in view of the objection raised, it is appropriate to take issue No.4 foremost, for adjudication.
ISSUE NO.4
4. Whether the Suit claimed is not maintainable in terms of Section 230 of Contract Act ? OPD 13.1 The onus to prove this issue is upon the defendant. After examining the legal tenability of the objection raised by the defendant on maintainability of the present claim of the plaintiff, the brief facts and evidence relevant to this issue are being considered. 13.2 The plaintiff as proprietor of proprietorship firm 'Trijvi Enterprises' has filed the present commercial suit against the defendant company which is a private limited company seeking recovery of Rs. 50,31,950/- along with pendente lite and future Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 23/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 interest. It is the case of the plaintiff that defendant approached the plaintiff and offered distributorship of Gionee Cellular Phones and the offer was accepted by the plaintiff. As per business routine, plaintiff paid money in advance against which phone sets were supplied by defendant. It is further averred that plaintiff has been maintaining Statement of Account of defendant for the business transactions between the parties and as per which, there is an outstanding amount of Rs. 35,43,627/- and vide email dated 06.03.2018, plaintiff had shown her inability to continue with the business further and requested for clearance of the outstanding but defendant failed to do so and vide their email dated 03.01.2019, defendant accepted their liability only for a sum of Rs.12,55,470/-. 13.3 By way of the present suit for recovery, alleged outstanding dues have been claimed against the defendant company, after adjusting payments made by the defendant, in favour of the plaintiff from time to time and also against returned consignment, price drop adjustments, target achievement incentive etc., stating to be entitled to be recovered in favour of the plaintiff and against the defendant. It is stated that despite repeated requests from the plaintiff, defendant has failed to clear the payment of dues and outstanding recoverable amount in favour of the plaintiff, hence, the present suit. 13.4 The defendant company has outrightly denied the entitlement of the plaintiff over the claim in the present suit on several defences that have been raised in the written statement as well as during trial. It has been denied that any amount whatsoever is due and payable by the defendant to the plaintiff and further, that the defendant already released a payment of Rs. 10 lakhs in favour of the Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 24/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 plaintiff on 01.08.2018 through RTGS, stating that all outstanding dues were already paid to the plaintiff. Furthermore, it is claimed that after reconciliation of the accounts of defendant, a sum of Rs. 39 lakhs have been excessively paid to the plaintiff, though no set off or Counter Claim has been raised in the suit. As such, any liability of the defendant to pay claimed outstanding dues in favour of the plaintiff has been outrightly denied.
13.5 Beside the main defence challenging the very entitlement of the plaintiff, legal objections have been raised on maintainability of the suit wherein the preliminary legal objection that has been asserted is on the ground that the defendant was an agent of M/s Syntek (HK) Technology Ltd. for the local market of the country and accordingly, defendant issued distributorship to various business entities on behalf of Principal Company. It is averred that the present suit is not maintainable against the defendant as an agent of the Principal Company in terms of the bar provided under Section 230 of Indian Contract Act of 1872 (hereinafter referred to as 'the Act'). It is averred that the defendant company being agent cannot personally enforce nor can be bound by contracts on behalf of the Principal, praying for dismissal of the suit in view of the alleged legal bar as per Section 230 of the Indian Contract Act. 13.6 During the course of arguments, it is contended on behalf of defendant that the business transactions between the parties pertained to the distributorship and sale of Gionee Cellular phones which are manufactured by Chinese company called M/s Syntek (HK) Technology Ltd. and defendant being agent of the parent company in the sale chain of mobile phones, cannot be attributed any Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 25/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 other role, except that of an agent. It is argued that the suit is directly hit by Section 230 of the Act. Reliance placed upon a judgment titled as Ace Innovaters Pvt. Ltd. Vs. Hewlett Packard India Sale Pvt. Ltd., reported as 2014 (140) DRJ 91).
13.7 By way of replication filed on behalf of plaintiff, the legal objection raised by the defendant has been outrightly rejected and denied with the assertion that the provisions under Section 230 of the Act do not apply to the facts of the present case. It is averred that there was no privity of contract between the plaintiff and the manufacturer of Gionee Cellular phones namely M/s Syntek (HK) Technology Ltd. It is categorically denied that defendant is merely an agent of the manufacturer as claimed with the assertion that the defendant itself offered distributorship of Gionee Cellular phones to the plaintiff which after discussions with the plaintiff, was duly accepted by the plaintiff. It is stated that there was no privity of contract between the plaintiff and the principal company, reasserting a validly and legally recoverable claim against the defendant company by way of the suit.
13.8 In support of arguments on behalf of the plaintiff on the issue under consideration, it has been strongly contended that there was no interaction between the plaintiff and the alleged principal company. It is argued that there was no agreement that was entered between M/s Syntek (HK) Technology Ltd. and the plaintiff. It is further argued that the agreement of distributorship of Gionee Cellular phones was entered with the defendant directly, who interacted with the plaintiff at every stage of business and also transferred payments to the bank of the plaintiff from the account of Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 26/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 the defendant, from time to time.
13.9 It is now relevant to reproduce the relevant statutory provision by way of Section 230 of the Indian Contract Act, which is reproduced herebelow:-
"230.Agent cannot personally enforce, nor be bound by, contracts on behalf of principal
-- In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Presumption of contract to contrary -- Such a contract shall be presumed to exist in the following cases:-
(1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2) where the agent does not disclose the name of his principal;
(3) where the principal, though disclosed, cannot be sued."
13.10 The law on the subject has been considered. The statutory provision u/s 230 of the Indian Contract Act has carved out certain exceptions whereby the liability of 'agent' in respect of respect of contracts entered on behalf of its Principal, is not exempted. The explicit meaning and purpose of the word 'agent' is a settled preposition of law which has been laid down and discussed in judgment titled as 'Motilal Chanoalal Vaish Vs. Golden Tobacco Co.', AIR 1957 MP 223, it was observed that the rule as to agency is expressed in the maxim 'qui facit per alium, facit per se'. It is founded on a contract either express or implied, by which one of the parties confides to the other, management of same business to be transacted in his name on his account and by which the other assumes to do the business and render an account of it."
13.11 Now, it is incumbent to consider the presumption stipulated under Section 230 of the Contract Act itself. whereby an Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 27/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 existence of a contract with the agent is a presumption statutorily provided by law. As in the facts of the present case, where a contract is made by a alleged agent for sale of goods of a merchant resident abroad, the law by way of exception raises a presumption of existence of a contract for sale of the agent the plaintiff or defendant as the case may be. The defendant has contended that the present suit is not maintainable in view of Section 230 of the Indian Contract Act claiming itself to be an agent of M/s Syntek (HK) Technology Ltd. and therefore seeking an exception under the law to be bound by any liability on behalf of principal. As considered, Section 230 of Indian Contract Act in itself entail A presumption in cases of sale or purchase of goods for A merchant abroad. Admittedly, M/s Syntek (HK) Technology Ltd. is the manufacturer located in the chinese territory which is 'abroad', within the meaning and purpose of the presumption laid under Section 230 of Indian Contract Act. Therefore, existence of a contraxct directly by the agent with other business entitites for sale or purchase of foreign goods in India, as a presumption laid by law.
13.12 As per the evidence that has been recorded for respective parties, relevant to the issue is the testimony of DW1 namely Sh. Rajesh Mahajan, who has appeared in the witness box by way of authority in his favour vide Board Resolution (Ex. DW1/1) and has testified as per averments in the written statement. DW1 admitted that defendant has failed to place any agreement executed between the defendant and M/s Syntek (HK) Technology Ltd. to show the relationship between the manufacturer and the defendant as the principal company and its agent, as claimed. He admitted that Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 28/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 defendant company is involved in supplying and distributing different electrical and telecom products. DW1 further admitted that defendant company used to purchase telecom products from M/s Syntek (HK) Technology Ltd. During further cross-examination, DW1 admitted that all the email communication that occurred between the plaintiff and defendant, were issued and received from the office of defendant company. On cross-examination, DW1 failed to produce any document showing that M/s Syntek (HK) Technology Ltd. used to make payment to the plaintiff or to show that there was any direct processing of claims of the plaintiff by the said M/s Syntek (HK) Technology Ltd. He admitted that all payments were made to the plaintiff from the accounts of defendant company and failed to prove anything on record to show the necessity of instruction and approval on behalf of alleged principal company. So much so that the defendant in its own evidence through its witness DW1, has placed reliance on the Statement of Account Ex.DW1/2 stated to have been communicated to the plaintiff via email dated 12.02.2019, claiming settlement of all claims of the plaintiff. The perusal of address of the sender, addressee vide email dated 12.02.2019 issued on behalf of the defendant does not even show any marking of the email to its alleged principal company. The perusal of the annexed ledger account vide Ex.DW1/2 also reflects direct business dealings of debit and credit entry against tax invoices between the plaintiff and the defendant in respect of distributorship in question. During cross-examination of DW1, even on specific cross-examination, DW1 failed to produce any document to show in favour of M/s Syntek (HK) Technology Ltd. in day-to-day business between the plaintiff and defendant.
Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 29/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 13.13 Now, appreciating the evidence that has been led on behalf of plaintiff to examine if anything in cross-examination of PW1 emerged in favour of the defendant for the purpose of this issue, whereas the sole plaintiff's witness who has been examined is Mr. S. Jagmohan Singh, husband of plaintiff who is the sole proprietor of the proprietorship firm Trijivi Enterprises. He has tendered his affidavit as PW1 and his testimony has been questioned as incompetent witness. However, there is no challenge to the proved Power of Attorney by the plaintiff as Ex. PW1/1 and no legal bar has been administered to show as to why PW1 is incompetent to testify for the plaintiff. The chief-examination of PW1 is as per averments in the plaint and the documents that have been relied upon by PW1 pertain to the day-to-day business activities of the proprietorship concern of the plaintiff. Perusal of emails relied upon by PW1 as Ex. PW1/2 to Ex. PW1/17, reveals the communication made by the deposing witness himself with the defendant, on behalf of plaintiff, in running the day-to-day activities of the plaintiff. The requisite certificate under Section 65B of Indian Evidence Act (erstwhile enactment - now Section 63 BSA), in support of the emails is also duly proved on record. During cross-examination of PW1, he has emphatically deposed about the distributorship agreement entered vide email (Ex. PW1/2) dated 29.11.2016 and further that there was no formal written contract separately executed between the plaintiff and defendant in respect of the distributorship of Gionee mobile phones granted by the defendant company in favour of the plaintiff. The thread of the emails exchanged between the parties dated 29.11.2016 clearly prove the offer for distributorship by the Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 30/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 defendant in favour of plaintiff and acceptance thereof on the same day by the plaintiff.
13.14 On being cross-examined, PW1 expressed lack of knowledge if defendant company was not the manufacturer of the mobile phones in question and categorically denied that the details of the defendant that were accessible to the plaintiff, belonged to M/s Syntek (HK) Technology Ltd. PW1 further testified that the name of defendant company was mentioned along with the name of the manufacturing company and that there were dealings of the plaintiff directly with the defendant company, which issued credit notes in its favour from time to time. Further, considering the testimony of PW1 and his cross-examination pertaining to the issue under consideration, it is revealed that PW1 had categorically denied the suggestion that there was any settlement of claims of the plaintiff by the defendant, after approval of the same from the alleged parent company. As such, PW1 has nowhere admitted any relationship between M/s Syntek (HK) Technology Ltd. and the plaintiff, in its entire testimony. 13.15 It may be now relevant to consider judgment relied upon by the defendant during the course of arguments, titled as Ace Innovaters Pvt. Ltd. (supra) which has been carefully appreciated wherein the Hon'ble High Court of Delhi has been pleased to duly examine Section 230 of Indian Contract Act and duly appreciated and held as under:-
"It is thus evident that in terms of Section 230 of the Contract Act in the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by him."
It has been further observed that Section 230 of the Act Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 31/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 categorically makes it clear that an agent is not liable for acts of a disclosed principal, if any contrary contract is not pleaded. This judgment is not applicable to the facts of the present case as the defendant has not been impleaded in the array of parties, as an agent of the principal manufacturer M/s Syntek (HK) Technology Ltd. It is also not the case before this Court where the plaintiff has sued the main principal and there is any objection for non-impleadment of its agent. The judgment relied upon by the defendant is not applicable to the facts of the present case wherein the legal objection has been raised by the defendant on the footing that defendant itself is the alleged agent of the principal manufacturer M/s Syntek (HK) Technology Ltd.
13.16 At this juncture, the well settled legal position has been examined. In 'Union of India v. Chinoy Chablani & Company' , reported as AIR 1982 Cal 365, the Hon'ble Court observed that "section 230 has two parts. The first part provides that an agent can neither personally enforce nor he is personally bound by contracts entered into by him on behalf of his principal unless there is a contract to the effect that the agent may personally enforce or be bound by contract. The second part of their section engrafts an exception to the above rule. It says that although there is no specific contract to the effect that the agent may personally enforce the contracts or be personally bound by them, yet the law will presume the existence of such contract that an agent may personally enforce the contracts and be bound by them."
x It was further held that the issue related to the circumstances where the agent enters into a contract on behalf of a Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 32/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 person who cannot be sued, as for example, where the principle is a foreign sovereign or an ambassador, or a minor or a lunatic, the presumption is that the third party gave credit to the agent, hence the agent is personally liable upon the contract. 31.17 After considering the well settled legal position, the statutory law applicable to the facts of this case and pleadings and evidence on record, the defendant has only taken the legal objection under Section 230 of the Act, with an effort to avoid enforceability of any legal right that the plaintiff may be able to prove against it. It is not the case of plaintiff that defendant was contacted for business of selling Gionee mobile phones, for and on behalf of its alleged principal M/s Syntek (HK) Technology Ltd. The plaintiff has relied upon its distributorship on the basis of email (Ex. PW1/3) by which it is asserted that the defendant offered distributorship of cellular phones for part of West Delhi to the plaintiff vide email dated 29.11.2016 proved as Ex. PW1/3. The series of emails exchanged between the parties on 29.11.2016 culminated with the last email issued by the plaintiff in favour of the defendant on 29.11.2016 at 07:27 p.m. vide Ex. PW1/4 which is evasively denied at the time of admission/denial of documents on behalf of defendant, but not challenged during cross-examination of plaintiff's witness. Even otherwise, it is an admitted case on behalf of defendant that the distributorship of Gionee mobile phones was granted in favour of the plaintiff having business relations which commenced between the parties w.e.f. 29.11.2016. It may also be relevant to appreciate the documents tendered through its own witness DW1 vide Ex. DW1/2, which is the alleged Ledger account purportedly maintained by the Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 33/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 defendant in respect of the business with the plaintiff. The document of the defendant Ex. DW1/2 in itself clearly reveals the direct business relations that existed between the defendant and the plaintiff with the Director of the defendant duly signing the Ledger account (Ex. DW1/2) without any mention of the Ledger account being either sourced by its alleged principal M/s Syntek (HK) Technology Ltd. or issued on approval of its alleged principal M/s Syntek (HK) Technology Ltd. There is nothing on record to show any communication, agreement or contract between the plaintiff and M/s Syntek (HK) Technology Ltd. There is nothing in the evidence tendered on behalf of plaintiff to show that the plaintiff communicated with the foreign manufacturer/merchant at any point of time and in fact, it is the defendant who had the onus to prove the issue. The defendant has not brought forth any contract between the manufacturer of mobile phones and itself to show even the existence of principal agent relationship, as claimed. There is no fact or evidence on record to prove that defendant was an agent of M/s Syntek (HK) Technology Ltd., for the purpose of its business of sale of Gionee mobile phones, in India.
13.18 Even otherwise, the very statutory provision under Section 230 of the Act carves out a legal presumption of existence of a contract between the agent and its principal for sale of goods for a merchant resident abroad. Even, if the case of the defendant claiming agency of M/s Syntek (HK) Technology Ltd. is assumed and DW1 denies any contract between itself and its alleged principal, even in such eventuality, the operation of law under Section 230 of the Act presumes existence of such a document of contract between the Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 34/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 defendant and the plaintiff for their business of sale and purchase conducted in India. This case pertains to the agreement of sale of Gionee mobile phones for which the defendant offered distributorship to the plaintiff for West Delhi region, in its own capacity as a wholeseller/supplier and defendant has miserably failed to prove any business contract or relationship between the plaintiff and the manufacturer M/s Syntek (HK) Technology Ltd., a Chinese company. Therefore, there is a legal presumption of existence of a contract between the plaintiff and the defendant, which shall personally make the defendant legally liable for the business conducted by the defendant on behalf of its foreign merchant. Therefore, defendant shall be personally bound by any business conducted by the defendant with different business entities, within the territory of India, through its distributors. 13.19 In view of the aforesaid facts and reasons, there is no legal impediment envisaged under Section 230 of the Indian Contract for maintainability of the present Suit.
Issue no.4 is, accordingly, decided against the defendant and in favour of the plaintiff.
ISSUE NO.3
3. Whether the entire claim of plaintiff was settled by the defendant by making a payment of Rs.10,00,000/-? OPD.
14. It is the case of the defendant that the entire claim of the plaintiff was settled upon payment of a sum of Rs.10 Lakhs in favour Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 35/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 of the plaintiff on 01.08.2018 via RTGS. The onus to prove this issue is upon the defendant, who has to establish that upon the alleged payment made by the defendant in favour of the plaintiff, a settlement of the claim pertaining to the business of plaintiff and defendant, after termination of the distributorship, stood settled. 14.1 It is averred in the Written Statement that plaintiff's claims were approved by the principal company and Rs.10 Lakh was paid on 01.08.2018 via RTGS. It is further averred that an inadvertent e-mail dated 05.01.2019 overlooked this payment, which the plaintiff later acknowledged. The defendant corrected the error on 12.02.2019 by sending the complete ledger through e-mail, which the plaintiff did not dispute. Now, the plaintiff cannot rely on the e-mail dated 05.01.2019 to support its claim. It is asserted that no amount is due from the defendant, further submitting that while Rs.10 Lakh was paid on 01.08.2018 against a claim of Rs10,33,836/-, upon subsequent review, it was revealed that excessive amount of Rs.39 Lakh was paid overdue to the plaintiff. It is asserted that the plaintiff filed the suit with malafide intent to retain this excess amount, making the suit false, frivolous, and devoid of any entitlement to recovery.
14.2 By way of replication, plaintiff has vehemently denied that no amount is payable by the defendant to the plaintiff or that the claims were settled by the defendant upon payment of Rs.10 Lakh through RTGS on 01.08.2018. It is asserted that the defendant has failed to furnish any details of the alleged total claim stated to have been settled with the plaintiff, reasserting that the account was never fully settled with the defendant. It is denied that any inadvertent Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 36/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 mistake occurred in the defendant's accounts or that emails dated 05.01.2019 (Ex.PW1/17) and 12.02.2019 (Ex.DW1/2 Colly) were written due to such mistake or were ever accepted by the plaintiff. It is the case of the plaintiff that the emails exchanged between the parties clearly establish the defendant's liability to pay the outstanding dues claimed in the plaint. It is further averred that plaintiff repeatedly demanded payment through emails dated 06.03.2018, 06.04.2018, 02.05.2018, 27.08.2018, 08.09.2018, 22.09.2018 and 02.10.2018, and that defendant assured payment through emails dated 08.03.2018, 07.04.2018, 16.08.2018, 03.01.2019 and 05.01.2019. It is further averred that the defendant, vide emails dated 03.01.2019 and 05.01.2019, admitted liability of Rs.12,55,470/- payable to the plaintiff, while denying that any excess payment of Rs.39 Lakh was made.
14.3 Now considering the evidence relevant to the issue under consideration the defendant has examined only its sole witness DW1 Sh. Rajesh Mahajan, who is one of the Directors of the defendant company. Defendant, after proving his authority has placed reliance on copy of email dated 12.02.2019 alongwith ledger account as Ex.DW1/2(Colly.), duly appended by requisite certificate u/s 65B of erstwhile Indian Evidence Act vide Ex.DW1/3. 14.4 During cross-examination, DW1 was confronted with Ex.DW1/2 wherein he admitted that all payments reflected in account statement Ex.DW1/2 were made by the defendant company. He further admitted that a payment of Rs.10 Lakhs was made on 01.08.2018 by the defendant company to the plaintiff. DW1 has further admitted that the defendant company has not placed on record Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 37/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 any statement of reconciliation of account/audit report in respect of full and final settlement of claim of the plaintiff or the claim of any excess payment claimed to have been made to the plaintiff. 14.5 Now examining the testimony of PW1 on the aspect under consideration, PW1 has duly tendered and relied upon email dated 27.08.2018 issued from the plaintiff to the defendant vide Ex.PW1/9 whereby plaintiff has sought updating of the claimed amount while asking the defendant to credit a sum of Rs.10,33,836/- in favour of the plaintiff. This email Ex.PW1/9 has been issued on behalf of plaintiff in response to the email from the defendant dated 16.08.2018 Ex.PW1/15 wherein the defendant has communicated that all pending claims between the parties have been reconciled. Ex.PW1/15 has an attachment containing a list of pending claims of the plaintiff to the tune of Rs.10,33,836/-. The fact of this communication by the defendant further is affirmed by way of the email dated 03.01.2019 (Ex.PW1/16) issued from the defendant to the plaintiff including the alleged full and final claimed summary showing the total amount payable by the defendant to the plaintiff @Rs.12,55,470/-. In quick succession of e-mail dated 03.01.2019 Ex.PW1/16 sent at 5:00 P.M., defendant has sent another email on 05.01.2019 itself at 06:40 p.m. (Ex.PW1/17) recalculating and sending a revised and full and final computation of the claimed summary, also showing the same amount payable by the defendant. In both emails Ex.PW1/16 and Ex.PW1/17, some pending bill against A1 Lite hand set has been tabulated, which is not relevant for discussion in this issue.
14.6 It is now examined that at the stage of admission/denial Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 38/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 of documents, defendant has denied sending the e-mails Ex.PW1/16 and Ex.PW1/17, though, the emails which have been duly tendered on record by the witness of the plaintiff PW1, have neither been rebutted nor challenged in the cross-examination of PW1. It is further relevant to consider the averments on behalf of the defendant in the Written Statement itself wherein it is stated that an inadvertent email dated 05.01.2019 overlooked the earlier payment made on behalf of the defendant and claiming that the said error stood corrected by its email dated 12.02.2019 relied upon as Ex.DW1/2 (Colly) during testimony of DW1. A clear contradiction in the stand of the defendant while denying the emails Ex.PW1/16 and Ex.PW1/17 outrightly, prior to trial, not challenging the said emails despite opportunity at the time of cross-examination of PW1 and above all, admitting the factum of earlier mail dated 05.01.2019, falsify the defence raised by defendant in not having sent the claimed settlement summary vide email Ex.PW1/16 and Ex.PW1/17, which are emails duly proved on record.
14.7 Now considering the relevance of Ex.DW1/2, it is the case of the defendant that email dated 12.02.2019 vide Ex.DW1/2 was sent from the defendant to the plaintiff, after reconciling the entire amount and updated account statement till January 2019 was attached thereto. Perusal of the statement of account attached to and part of Ex.DW1/2 shows a credit entry on 01.08.2018 in the sum of Rs.10 Lakhs vide RTGS transferred from the defendant to the plaintiff on which date a balance of Rs.2,21,633/- is reflected, as per the own ledger account of the defendant. Thereafter, there is a debit entry immediately thereafter, of the same amount stating as claim Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 39/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 deducted by Gionee to bring the entire balance sheet to show even credit and debit entries. The defendant, either by any document on record or through his evidence, has failed to even demonstrate the computation of this amount of Rs.2,21,633/- way back in January
-2019 after the last RTGS transfer of Rs.10 Lakhs in favour of the defendant. Moreover, the very balance sheet relied upon by defendant vide Ex.DW1/2 does not support the own defence raised by defendant stating that while a sum of Rs.10 lakkh was paid by defendant on 01.08.2018, there was a full and final settlement claim of Rs.10,33,836/-. Strangely, Ex.PW1/16 and Ex.PW1/17 relied upon and duly proved by the plaintiff incorporate the claimed summary shared by defendant to the plaintiff showing total pending claimed amount of Rs.10,33,836/-, as on 03.01.2019 and also showing a previous pending claim amount in its ledger @Rs.2,21,634/-.
14.8 In view of the aforesaid facts and circumstances, after meticulously examining the entire relevant communication between the parties, evidence led, pleadings brought on record, respective evidence led by the parties and meticulous examination of the ledgers and statements relied upon, defendant has miserably failed to prove that the sum of Rs.10 Lakh paid by the defendant to the plaintiff vide RTGS on 01.08.2018 was against settlement of full and final claimed amount in favour of the plaintiff. It is own ledger relied upon vide Ex.DW1/2 shows an outstanding sum of @Rs.2,21,634/- as on 01.08.2018 which finds mention in Ex.PW1/16 and Ex.PW1/17 as on 03.01.2019 (05.01.2019). Therefore, the defendant has failed to prove that the entire claim of the plaintiff was settled by the defendant on making a payment of Rs.10 Lakhs, to the plaintiff.
Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 40/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 Issue no. 3 is accordingly decided against the defendant.
ISSUE NO.1.
1. Whether the plaintiff is entitled to recovery of principal amount of Rs.35,43,627/- ? OPP.
15. The plaintiff as proprietor of Trijvi Enterprises, has filed the present commercial suit against the defendant, seeking recovery of Rs.50,31,950/- along with pendente lite and future interest. The plaintiff was appointed as a distributor of Gionee cellular phones and made advance payments, against which, phone sets were supplied by the defendant. As per the plaintiff's statement of account, an amount of Rs.35,43,627/- remains outstanding. By email dated 06.03.2018 (Ex.PW1/6), the plaintiff expressed inability to continue the business and sought clearance of dues, however, the defendant failed to pay and vide email dated 03.01.2019 (Ex.PW1/16), admitted liability only to the extent of Rs.12,55,470/-. By way the present recovery suit, the plaintiff claims outstanding dues against the defendant company after adjusting payments made from time to time, as well as returned consignments, price-drop adjustments and target achievement incentives. Despite repeated requests, the defendant has failed to clear the outstanding recoverable amount, resulting in filing of the present suit.
15.1. In the written statement, defendant has outrightly denied the plaintiff's entitlement to the claim, contending that no amount is Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 41/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 due or payable. It is averred that the plaintiff's claims were approved by the principal company and Rs.10 Lakh was paid on 01.08.2018 via RTGS towards full and final settlement of dues. An inadvertent e- mail dated 05.01.2019 (Ex.PW1/17) overlooked this payment. However, the defendant corrected the error by sending the complete ledger through e-mail (Ex.DW1/2) on 12.02.2019, which the plaintiff did not dispute. Now, the plaintiff cannot rely on the e-mail dated 05.01.2019 to support its claim. It is further claimed that, upon reconciliation of accounts, the defendant found an excess payment of Rs.39 Lakhs paid to the plaintiff, however, no set-off or counter- claim has been filed. Accordingly, any liability to pay the alleged outstanding dues is denied.
15.2. Arguments on behalf of the parties have been heard at length and the entire record including the pleadings have been perused. The applicable law has been duly considered. The entire evidence, both oral and documentary, have been appreciated.
15.3. Plaintiff in support of its case got examined the sole witness Sh. S. Jagmohan Singh, SPA of plaintiff, as PW1. During evidence, PW1 admitted that Claim Nos. 1, 2 and 9 pertain to incentive schemes; Claim Nos. 3, 6, 8 and 14 to price-drop of handsets; Claim No. 4 to EOL (End of Life) claims; Claim No. 5 to company branding; Claim Nos. 7, 10, 11 and 15 to general schemes; Claim Nos. 12, 16 and 17 to defective material and purchase returns; and Claim No. 13 to VAT/GST difference.
Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 42/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 15.4. In defence evidence, one sole witness Sh.Rajesh Mahajan, one of the Directors of defendant no.1, has been examined as DW1, who has been cross-examined by ld. Counsel for the plaintiff, at length.
15.5. It may be relevant now to consider the law pertaining to discharge of burden of proof of the issues as relevant and applicable to the Civil Jurisdiction. In the binding authority of the Hon'ble Supreme Court of India, in M/s. Gian Chand & Brothers and Another v. Rattan Lal@ Rattan Singh: [2013] 3 S.C.R. 601; it has been laid down:-
1.3. It is well settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. The burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it but the said principle may not be universal in its application and there may be an exception thereto.
The various aspects of proving the facts of a case and exceptions, if any, have been duly considered by Hon'ble Supreme Court of India in Anil Rishi vs Gurbaksh Singh in Appeal (civil) 2413 of 2006 on 2 May, 2006, wherein the binding legal position has been reinforced as under :-
"Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. Indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side."
Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 43/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 It has been further laid down (supra) :-
"A distinction exists between a burden of proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he 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.".
Further, the onus to prove the averments and claim of the plaintiff rests entirely upon the plaintiff, who has to discharge the burden of proof to establish its case, as per law. In civil litigation, it is sufficient for the plaintiff to discharge the burden laid upon it successfully, if the plaintiff is able to prove its case by preponderance of probabilities. It is the law of land as re-affirmed by the Hon'ble Apex Court in Adiveppa V. Bhimappa (2017) 9 SCC 586. Hon'ble Supreme Court of India in Adiveppa (supra) was pleased to uphold that:
"It is a settled principle of law that the initial burden is always on the plaintiff to prove his case by proper pleadings and adequate evidence (oral and documentary) in support thereof."
Thus, the burden to prove the case as per law entirely lies upon the plaintiff, by way of documentary and oral evidence. 15.6. As per law of the land, the onus to prove is upon the plaintiff and if the plaintiff discharges that onus and makes out a case Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL GUPTA 44/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 to entitle to the relief asserted, in these circumstance, the onus shifts upon the defendants to prove such circumstances which may disentitle the plaintiff to the relief claimed.
15.7. In order to examine the claimed entitlement of the plaintiff to recover outstanding dues of Rs.35,43,627/- from the defendant, it is relevant to consider the testimony of the plaintiff who has placed reliance on the communication between the parties vide emails Ex.PW1/2 to Ex.PW1/17. It is the case contended for the plaintiff that vide email dated 29.11.2016 tendered as Ex.PW1/3 and acknowledgment email Ex.PW1/4 of even date, a distributorship agreement was entered wherein the defendant appointed the plaintiff as distributor of mobile phone for part of West Delhi. The factum of the two emails Ex.PW1/3 and Ex.PW1/4 are not the subject matter of dispute between the parties. It is further the admitted fact that as per the arrangement between the parties, plaintiff paid money in advance to the defendant company from time to time against supplies of hand sets to the plaintiff by the defendant company. It is further contended that the defendant as wholeseller/supplier used to inform plaintiff and other distributors regarding drop of price of the goods, announcement of the schemes, trade schemes for month of January 2017 and also communicated regarding February paid branding retailer list. For the aforesaid purposes, the witness DW1 has been cross-examined and the respective emails Ex.DW1/P1 to Ex.DW1/P4 have been proved on record, through the defendant witness itself. It is further submitted that via email Ex.PW1/P1 dated 19.03.2018, defendant communicated regarding February trade branding retailers list and vide Ex.DW/1P5 (email dated 13.01.2018) defendant sent Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 45/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 information regarding deployment of Demos in the market. Both these emails also tendered on record through DW1 are stated to have been admitted and proved. Further reliance has been placed on email dated 06.03.2018 vide Ex.PW1/6 submitting that the plaintiff showed her inability to continue the business of distributorship with the defendant company and sought settlement of her account, for which the plaintiff shared the statement of account for the period 01.04.2016 to 18.02.2020 with the defendant via email dated 16.08.2018 relied upon Ex.PW1/5. It is contended that accordingly, a sum of Rs.35,43,627/- remained due and payable from the defendant company to the plaintiff, hence the present suit. The computation that has been relied upon to support the contention is as under :
Sl. Pending Claims Amount (Rs.)
No.
1. JAN MONTH LINERITY CD 2017 90,000/-
2. SEP OCT TARGET ACHIEVEMENT 2,86,394/-
(DIWALI)
3. A1 LITE PRICE DROP 19 DEC 1,82,590/-
4. EOL SUPPORT 1 JAN TO 31 JAN (F103, P7 2,59,000/-
MAX AND S6S)
5. NOV DEC, JAN, SEB PAID BRANDING 4,10,077/-
6. PRICE DROP X1S 15.1.18 2,43,133/-
7. S10 LITE SPIKE 17 JAN TO 31 JAN 7,000/-
8. P7 MAX PRICE DROP 26 JAN 2018 96,031/-
9. 5% CED TARGET ACHIEVEMENT FOR 41,872/-
JAN 18
10. M7 POWER DEMO 1,19,000/-
11. S10 LITE DEMO 16,000/-
Digitally
PREETI signed by
AGRAWAL PREETI
GUPTA AGRAWAL
CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 46/66
(PREETI AGRAWAL GUPTA)
District Judge (Commercial Court)-02
West/Tis Hazari Courts/Delhi
27.01.2025
12. DOA AND OCD CREDIT NOTE 3,49,015/-
13. VAT /GST DIFF 1,54,175/-
14. X17 PRICE DROP 13.3.18 2,55,740/-
15. A1 LITE SPIKE 1000/ PCS EFF. FROM 10 19,040/-
TO 18
16. PURCHASE RETURNED 5,61,088/-
17. NON ACTIVATED AND DOA HANDSET 4,53,472/-
RETURNED
TOTAL Rs.35,43,627/-
15.8 During further arguments on behalf of plaintiff, reliance
has been placed on email dated 06.04.2018 stated to have been issued from the plaintiff to the defendant relied upon as Ex. PW1/7; e-mail dated 02.05.2018 vide Ex.PW1/8 communicating that the settlement/closure was still pending thereby requesting for completion of partial payment; email dated 27.08.2018 vide Ex.PW1/9 requesting the defendant for updating the claimed amount of Rs.10,33,836/- in ledger; Ex.PW1/11 (email dated 22.09.2018) asserting pending claims to the tune of Rs.29,45,078/- from the defendant. The plaintiff Counsel has further reliance on email dated 16.08.2018 relied upon as Ex.PW1/15 of the defendant whereby the defendant stated that all pending claims by which the defendant had calculated the sum of Rs.10,33,836/-, claiming reconciliation of pending claim. Further reliance has been placed on email dated 08.09.2018 vide Ex.PW1/10 stated to have been issued from plaintiff to the defendant requesting to provide credit note and sale return copies; email dated 08.03.2018 exchanged between the parties vide Ex.PW1/13 for setting up meeting, soon after the communication by Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 47/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 plaintiff for closure of the distributorship. It is submitted that vide Ex.PW1/16 which is email dated 03.01.2019, sent by the defendant to plaintiff, defendant admitted its liability in the sum of Rs.12,55,470/- against the total outstanding amount claimed by the plaintiff. It is further submitted that defendant for the first time, raised a demand claiming excessive payment in favour of the plaintiff, it its reply to the legal notice Ex.PW1/20.
15.9 It is submitted that the defendant witness DW1 has admitted that Ex.DW1/2 (Colly) duly reflect all payments made by the defendant to the plaintiff during course of business from time to time. It is further contended that defendant witness itself has admitted that all payments based on requisite instructions and approvals were not made to the plaintiff and also that the excessive payment defence taken by the defendant vide reply dated 27.08.2019 vide Ex.PW1/20 has not been claimed by way of counter-claim against the plaintiff, praying for passing decree in its favour.
15.10 During course of arguments on behalf of the defendant, it has been outrightly denied that defendant company had any liability in favour of the plaintiff, admitting that there was a distributorship arrangement between the defendant company in favour of the plaintiff for region of West Delhi via emails exchanged between the parties on 18.11.2016 and 29.11.2016. It is contended that the plaintiff was not entitled to payment of the incentives, which were target based and that the plaintiff never achieved the stipulated sales targets. It is contended that premise of the alleged recovery claimed by the plaintiff, is arising out of the claimed achievement of the sales targets, price drop adjustments and returned handsets.
Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 48/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 However, plaintiff has failed to establish that there was a scheme of cash discount for the month of January 2017 or that the plaintiff achieved the requisite target as per Scheme in Sep-Oct (Diwali). It is asserted that the entire onus of proving the scheme, the alleged head of payment and achievement of such scheme and entitlement of the payment under such head was upon the plaintiff, which the plaintiff miserably failed to prove, placing reliance on the testimony of cross- examination of PW1 S. Jagmohan Singh.
15.11 Further, ld. Counsel for defendant has categorized the entire list of 17 claims asserted by the defendant into different categories, and has contended that in respect of claims at Serial no.1, 2 and 9 of the Suit, plaintiff has failed to prove the incentive scheme allegedly issued by the defendant and has further failed to prove the achievement of targets against such alleged incentive schemes, provided by the defendant. It is submitted that the distributorship in favour of the plaintiff commenced on 29.11.2016 and was terminated by the plaintiff via email dated 06.03.2018 vide Ex.PW1/6. Entitlement of the plaintiff to claim any amount against these claims, have been denied.
15.12 As against claim appearing at Sl. no.3,6,8 & 14 claimed by the plaintiff, it is argued that the plaintiff has failed to establish that the defendant agreed to bear the difference of price of mobile sets in case of price drop and has further failed to place on record the purchase invoices of respective mobile sets and price drop against each such invoice. PW1 has failed to file any document to show the price drop of model/mobile set and has made a self declaratory claim, without any evidence to prove the same. Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 49/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 15.13 Ld. Counsel for defendant has further submitted in respect of the claim at Sl. no.5 in relation to branding of the company to contend that the plaintiff has not placed any document to show that defendant gave assurance to pay to the retailers, against hoarding/banners on their stores and that the plaintiff has failed to present any of such retailer in the witness box to show that the retailer is entitled to claim any amount from the plaintiff on account of branding or that any such amount was paid by the plaintiff to the retailer already against the claim held.
15.14 In respect to the claims appearing at Sl. No.7,10,11 & 15 pertaining to the General Scheme/Spikes scheme, the plaintiff witness failed to place on record any such scheme on record, except showing certain entries against the spike scheme in the Statement of Account Ex.DW1/2 furnished by the defendant. It is submitted that the plaintiff has not placed any document to show that any such amount against spike scheme was paid by the plaintiff to its retailers or to show the volume of such amount given by the plaintiff to its retailers or to show that any such amount was payable by the defendant to the plaintiff against the said scheme and that no computation whatsoever, has been furnished to establish the claim of the plaintiff. In regard to the EOL (End of Life) claim by the plaintiff vide claim at Sl. no.4, PW1 tried to testify that the same was claimed for the period 01.01.2017 to 31.01.2017 i.e. the month of January 2017 and on being confronted with email dated 13.02.2018 vide Ex.PW1/6, it was admitted that even in the computation of alleged Rs.40 Lakhs from the defendant, no reference or details of the component of EOL hand set was made in the mail and that such a Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 50/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 claim is an afterthought. Closing the arguments, ld. Counsel for defendant in respect of claim of difference in VAT/GST raised by the plaintiff in the suit in its claim at Sl. no.13, it is contended that the sum demanded against the tax regime difference stands miserably asserted without any proof furnished on behalf of plaintiff as to the computation of the alleged difference of tax and any tax return or document to show the volume of difference of tax allegedly deposited by the plaintiff with the competent authority. It is contended that the plaintiff is not entitled to any of the claim which have been raised on the basis of a self declaratory account, without any proof thereof and further that the amount admitted by the defendant vide Ex.PW1/17 (email dated 05.01.2019) Rs.10,33,836/- has already been paid by the defendant to the plaintiff by way of an RTGS entry of Rs.10 Lakh as on 01.08.2018.
15.15 After meticulously examining the entire communication between the parties by way of emails Ex.PW1/2 to Ex.PW1/17 Ex.DW1/2(Colly), Ex.DW1/P1 to Ex.DW1/P6 and duly considering the testimonies of respective witnesses, it is duly proved on record that as on 29.11.2016 the defendant offered the plaintiff distributorship of mobile hand set for part of West Delhi duly proved as Ex.PW1/3, which was accepted by the plaintiff vide email dated 29.11.2016 proved as an admitted mail vide Ex.PW1/4. It is also an admitted fact of parties on record that the plaintiff issued email dated 06.03.2018 vide Ex.PW1/6 in favour of the defendant, making a request not to continue the business referring to an earlier meeting with the defendant for agreement to settle all pending claims. It is also an admitted communication between the parties that vide email Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 51/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 dated 13.02.2018 vide Ex.PW1/6, plaintiff requested the defendant for settlement of pending claim of Rs.40 Lakhs to which, the defendant respondent on even date, calling for setting up a meeting. Therefore, it is duly established on record that a relationship of grant of distributorship started from the defendant as supplier of mobile hand set to the plaintiff w.e.f. 29.11.2016, which business continued till 06.03.2018, when the plaintiff asked for closure of the distributorship. It is further duly proved on record that soon before the closure of the date of distributorship on 06.03.2018, there was communication between the parties on 13.02.2018 to show that there were talks of request for settlement from the plaintiff and the desire of the defendant to set up a meeting with the plaintiff for settlement of their account. It is further an admitted fact that vide email dated 07.03.2018 Ex.PW1/7, plaintiff reminded the defendant for closure of distributorship and the same situation continued till 27.08.2018 by way of proved email communication Ex.PW1/9 sent by plaintiff to the defendant requesting for updation of the claim amount of Rs.10,33,836/- in the ledger. It is established that this email Ex.PW1/9 was issued by the plaintiff in response to the communication from the defendant vide Ex.PW1/15 (dated 16.08.2018) stating that all accounts were pending reconciliation, representing that as on the date of email i.e. 16.08.2018, a claim amount of Rs.10,33,836/- was reflected in the ledgers of the defendant.
15.16 Now an interesting development has come up during the trial wherein it is the case of the defendant that a sum of Rs.10 lakhs was already paid by the defendant in favour of the plaintiff vide Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 52/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 RTGS in the sum of Rs.10 Lakhs, in full and final settlement of all claims of the plaintiff after closure of distributorship on 06.03.2018. This very claim and defence of the defendant falls flat in view of the admitted email Ex.PW1/15 dated 16.08.2018, wherein the defendant has itself alleged reconciliation of pending claim and computed the amount as on that date as Rs.10,33,836/-.
15.17 Now, as the Court has arrived at considered opinion that the accounts were not settled between the defendant and plaintiff on payment of a sum of Rs.10 Lakhs via RTGS entry dated 01.08.2018 relied upon vide Ex.PW1/2 comprising of the claimed updated account statement till January -2019, it may be relevant to examine the development between the parties after the last discussed email herein-above vide Ex.PW1/9 dated 27.08.2018. The plaintiff through PW1 has placed reliance on subsequent emails dated 08.09.2018, 22.09.2018, 02.10.2018 vide Ex.PW1/10 to Ex.PW1/12 respectively wherein the plaintiff has been making request to defendant to provide credit notes and return copies and claiming settlement of its pending claims of Rs.29,45,078/- vide Ex.PW1/11 and ultimately claiming the settling of Rs.14 Lakhs out of 29 lakhs in its last communication for the claim on this aspect on 02.10.2018 vide Ex.PW1/12. In the entire cross-examination of PW1, none of the emails that have even been evasively denied at the stage of admission/denial of documents have been confronted to PW1 or denied by the defendant through its sole witness/DW1 and are accordingly proved in accordance with law. PW1 has tendered the requisite Certificate U/S 65 B of Indian Evidence Act, as applicable then (Now, Section 63 of BSA), to show that the emails were generated from the office computer, in the power Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 53/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 and control of the deposing witness. It is the case put forth by defendant that vide email dated 03.01.2019 Ex. PW1/16, claim summary was attached to show a total payable amount of Rs.12,55,470/- and a revised claim summary was again issued, soon thereafter, on 05.01.2019 vide Ex.PW1/17, issuing a revised claim summary with minor changes pertaining to the claimed recovery against supply of alleging pending claim against mobile sets to be supplied. The falsity of the deductions made by the defendant in its revised claim summary vide Ex.PW1/17 to the tune of Rs. Rs.2,21,634/- Lakh against pending claim of 66 mobile sets is reflected from the fact that the distributorship relations between the parties ceased after 06.03.2018 and therefore, there could not have been any pending claim raised by the defendant upon the plaintiff for the prospective supply of mobile sets. Therefore, as per the evidence on record, Ex.PW1/16 and Ex.PW1/17 are duly admitted and proved documents, showing the total claimed summary payable by the defendant to the plaintiff @Rs.12,55,470/-.
15.18 Now, it shall be relevant to examine the emails Ex.DW1/P1 dated 06.02.2018; Ex.DW1/P3 dated 05.01.2017; Ex.DW1/P4 dated 19.03.2018; Ex.DW1/P5 dated 13.01.2018 and Ex.DW1/P6 dated 04.01.2018, which are the emails that have come from the source of the plaintiff and confronted to the defendant witness and thereby admitted, which have been placed on record by the plaintiff in order to establish its claim for price drop entitlement against the defendant, the sales schemes issued by the defendant, trade schemes issued by the defendant for the month of January 2017, the retail paid branding list and stock bill demo claimed to be issued Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 54/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 to the retailers raised by the plaintiff. It may also be relevant to consider the email Ex.DW1/2 dated 12.02.2019 whereby it is the claim of the defendant to have enclosed alleged the complete ledger account pertaining to the business between the parties, stating updated statement of account till January 2019 was duly recorded and shared as the correct ledger account, denying all claims of the plaintiff. The bare perusal of Ex.DW1/2 in itself reveals various inclusions of credit made by the defendant in favour of the plaintiff against applicable schemes as early from February 2017 which go on with corresponding entries towards the course of business period between the parties. The perusal of Ex.DW1/2 also reveals entries in respect of 'price drop payable' head, against which credits have been paid from the defendant to the plaintiff, during the course of business. Therefore, plaintiff has been able to establish that there was some scheme incentives and that were being paid by the defendant to the plaintiff, as also the credit against 'price drop' was being paid by the defendant to the plaintiff, during the course of business.
15.19 It may be now appropriate to consider the claim of the plaintiff on each head as conveniently categorized by the defendant and admitted by PW1 in its cross-examination. In respect of the claim of the plaintiff in the sum of Rs.4,18,266/- (Claim at Sl.No.1, 2 & 9), the claim is based on the alleged entitlement of the plaintiff against incentive upon achieving the stipulated targets against monthly target scheme alleged by the plaintiff. However, plaintiff through its sole witness PW1, has failed to substantiate its claim by necessary documents of computation to show how an amount Rs.4,18,266/- has been arrived at by the plaintiff. Although, the plaintiff has duly Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 55/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 proved through its witness PW1 and from the evidence of defendant itself, that there were incentive schemes, issued by defendant in favour of the plaintiff, from time to time and the amounts were also credited by the defendant in favour of the plaintiff, the onus lies upon the plaintiff to show as to what amount was not paid by the defendant after achieving the requisite target against the incentive scheme offered by the defendant. The quantum and volume claimed by the plaintiff is not substantiated either by any documentary evidence or even by oral testimony of the plaintiff, duly explaining the month by month deficiency of target incentive payment by the defendant to the plaintiff. There is no statement of computation furnished by the plaintiff to prove its claim, which fails for want of necessary documentation, computation and quantization.
15.20 Now considering the claim of the plaintiff appearing at sl. no.3,6,8 & 14 wherein the plaintiff has claimed an amount of Rs.7,74,494/- against alleged entitlement in view of price drop of the mobile hand sets, though, the plaintiff has been able to duly prove its entitlement of price drop of the hand sets on record, by way of emails Ex.DW1/P1 to Ex.DW1/P5 and Ex.DW1/2 that the credit payments were being given by the defendant to the plaintiff against the price drop of hand sets. However, plaintiff admitted in its own cross- examination that no document has been filed to show as to what was the price drop against the Gionee hand set that was supplied to the plaintiff and what was the amount of adjustment difference that was payable by the defendant to the plaintiff against the supplies of mobile phones by the defendant to the plaintiff for onward retail. The plaintiff has failed to either place on record the purchase invoices of Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 56/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 the respective mobile sets or detailed computation of the price drop credit claimed by the plaintiff, as outstanding and payable by the defendant. The plaintiff has failed to substantiate its claim to the sum of Rs.7,74,494/- against the said claim.
15.21 The Court has now considered the specific claim made by the defendant in relation to the branding of the company, wherein PW1 has asserted that defendant company used to given assurance to the retailers for payment of a certain amount for displaying its name on hoardings/banners of their store. The plaintiff has claimed an amount of Rs. 4,10,077/- against this head of claim in the suit. The plaintiff has also duly proved on record that such payment of retail branding was existing during the business relations between the parties has relied upon vide Ex.DW1/P4, the plaintiff has failed to place any proved statement of account or document to show that she herself had paid any amount to the retailers against the retail branding of the company or that the retailers had placed any demand on the plaintiff, seeking the payment on account of branding or any computation to show as to how the amount claimed in the sum of Rs. Rs. 4,10,077/- has been arrived at by the plaintiff. In absence of any substantiated computation and demand from the retailers proved, the plaintiff has failed to prove by 'preponderance of probabilities', its entitlement to claim a sum of Rs. 4,10,077/- against the retail branding head, from the defendant company.
15.22 The Court is now in consideration of the claim related to general schemes, stated to have been alleged by the defendant with the name understood as 'Spike scheme', as claimed under Sl. Nos. 7, 10, 11 and 15, claiming a total recoverable amount of Rs.1,61,040/-
Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 57/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 by the plaintiff in favour of the defendant. The defendant has outrightly denied the claim stating that the plaintiff has not proved that any such scheme existed and has even challenged the case of the plaintiff that if the retailers were unable to sell the hand sets under the sale price fixed, defendant used to reimburse the retailers with extra amount to promote sales of those hand sets, which is referred to as 'spikes'. The very ledger account relied upon by the defendant vide Ex.DW1/2 in itself, clearly establishes that such an arrangement existed between the parties, on detailed and meticulous perusal of the ledger account relied upon by defendant himself vide Ex.DW1/2. However, even though the plaintiff has established an arrangement of payment against 'spike scheme', the onus to prove the entitlement of the claimed amount of Rs.1,61,040/- from the defendant necessitates to discharge the burden to prove the computation thereof. PW1 in his cross-examination admitted that the payment of 'spike scheme' related to the retailers and the plaintiff has miserably failed to bring any evidence, documentary or otherwise, on record to show that the plaintiff made the payment against spike scheme to any of its retailers or to show the quantum of payment made by the plaintiff to its retailers or to show the total amount of the spike scheme during the period of business between the parties from 29.11.2016 to 06.03.2018 or to show, as to show how much amount was paid by defendant against the said scheme and how much was recoverable against the total payable amount. The abstract claim of Rs.1,61,040/- amount against claim made in respect of spike scheme in itself, will not entitle the plaintiff to seek the recovery of the claim, which remained unproved against the defendant.
Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 58/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 15.23 The remaining part of the claim by way of the present suit has been made by the plaintiff on the head of 'EOL' (End of Life) for the month of January 2017. PW1 placed reliance on its email dated 13.02.2018 Ex.PW1/6 to justify the claim against EOL hand set stating that this amount was claimed and included in the total claim of Rs.40 lakh made via the said email. In cross-examination, PW1 admitted that there was no reference to any detail of EOL hand set in its email dated 13.02.2018 Ex.PW1/6. There is nothing on record to show that during the subsistence of the distributorship from the defendant in favour of the plaintiff from 29.11.2016 to 06.03.2018, there was payment made by defendant in favour of the plaintiff against the claimed head. In absence of any substantiated proof of the details of the mobile handset supplied by the defendant to the plaintiff, computation of price drop against the mobile sets for the relevant period, number mobile sets and models thereof and any proved accounting to support the claim of the plaintiff. The mere reliance placed on Ex.DW1/P6 (email dated 04.01.2018) to show that such EOL scheme existed, will not suffice, without any proof of statement of account to show the balance outstanding or recoverable claim against the claimed entitlement, stated to be payable against the EOL support to the retailers. The claim as such, on this account raised by the plaintiff fails to have been proved, in accordance with law.
15.24 The final claim that has been raised by the plaintiff against the claim VAT/GST in the sum of Rs.1,54,175/- is on account of the assertions that there was a change in regime of imposition of tax from VAT to GST. PW1 asserted that plaintiff was filing the GST Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 59/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 return on quarterly basis. A Claim of Rs.1,54,175/- against the difference in VAT/GST against stock claimed/stock appearing on portal is the mere assertion without substantiated by supporting evidence. PW1 or the plaintiff through PW1 or otherwise, has failed to bring any document on record and prove the same to show that the plaintiff paid the amount of difference of VAT/GST to the computation authority, pursuant to the change of Tax regime from VAT to GST. The plaintiff has also failed to bring any document and prove the same to show that the amount of stocks that were sold during the period when the tax regime difference was applicable. In absence of any substantiated proof by the requisite standard of law by 'preponderance of probabilities', plaintiff has failed to show its entitlement to a sum of Rs.1,54,175/- on account of difference claimed on VAT/GST. The plaintiff has not proved that it paid any additional tax upon imposition of the GST regime on the mobile sets or the quantum thereof.
15.25 After consideration of each of the 17 claims raised by the plaintiff, seeking a total recovery Rs.35,43,627/- from the defendant by way of the present suit, it may be now relevant to consider, if the plaintiff has been able to prove any entitlement of recovery that is outstanding dues and recoverable from the defendant. It is case of the plaintiff that after the closure of distributorship by virtue of e-mail Ex.PW1/6 w.e.f. 06.03.2018, repeated assurances were given by the defendant for settlement of all pending claims. The details of the emails sent by the defendant to the plaintiff in this regard vide email dated 13.02.2018 proved as Ex.PW1/6 of setting up of a meeting upon the plaintiff to discuss the pending claims and Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 60/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 thereafter, email vide Ex.PW/13 sent on 08.03.2018 shows that ongoing process between the parties towards settlement of the claims pertaining to the business conducted during the period of distributorship from 29.11.2016 to 06.03.2018. In this light, the most relevant email is email issued by defendant to the plaintiff vide Ex.PW1/15 on 16.08.2018, stating that as per the reconciliation of all pending accounts, an outstanding amount of Rs.10,33,836/- was pending against the running account as per the ledger maintained by the defendant. It is this email Ex.PW1/15 that was replied by plaintiff vide Ex.PW1/9 seeking payment against the admitted amount of the defendant. It is further relevant to consider that from material on record, plaintiff issued several emails requesting for providing credit notes and sale return copies vide Ex.PW1/10 and it is the email Ex.PW1/11 dated 22.09.2018 wherein the plaintiff asked the defendant after seeking a pending claim for a sum of Rs.29,45,078/- asking the defendant to update and send the amount to the plaintiff via RTGS. At this point, it may be now relevant to consider email exchanged between the parties and in particular, from defendant to plaintiff on 03.01.2019 vide Ex.PW1/16 and on 05.01.2019 vide Ex.PW1/17 wherein the defendant has sent a revised claim summary showing an outstanding payable amount by Telecell i.e. the defendant in favour of the plaintiff for a sum of Rs.12,55,470/-. As have already been considered herein-above, defendant through its witness DW1 otherwise has failed to substantiate the pending recoverable amount of Rs.6,44,684/- reflected vide Ex.PW1/17, recoverable from the plaintiff against 66 A1light mobile hand set @9,800/-. The defendant has failed to substantiate its adjusted claim against the admitted Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA 61/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 recoverable payable outstanding of Rs.12,55,470/-, at the cost of repetition, the defendant issued the email Ex.PW1/16 on 03.01.2019, while admittedly the distributorship arrangement was closed between the parties, way back on 06.03.2018.
15.26 The testimony of PW1 has duly asserted and proved the case in favour of the plaintiff that the plaintiff was a distributor of mobile phone and accessories of West Delhi and was granted distributorship vide Agreements Ex.PW1/3 and Ex.PW1/4. It is proved that the business of the proprietorship concern Trijivi Enterprises, of which Mrs. Harpreet Kaur is Proprietor, was being managed and assisted by the deposing witness Sh. S. Jagmohan Singh, who examined in the witness box as PW1. PW1 duly proved the email Ex.PW1/16 and Ex.PW1/17 which are even otherwise admitted emails to show that there remained an outstanding payable balance of Rs.12,55,470/- due, payable and outstanding by the defendant to the plaintiff as on 05.01.2019. The defendant has tried to raise a defence that a sum of Rs.10 lakh was credited via RTGS on 01.08.2018 and has placed reliance on its ledger account sent as an attachment via email Ex.DW1/2 as on 12.02.2019, claiming that the same was updated account statement till January 2019. The plaintiff has duly discharged the onus to prove outstanding recoverable balance of Rs.12,55,470/- from the defendant and the burden to prove shifts upon the defendant to show that the outstanding amount was already paid by defendant to the plaintiff in full and final settlement. The perusal of Ex.DW1/2 shows an RTGS credit of Rs.10 lakhs in the account of the plaintiff on which date an outstanding balance of Rs.2,21,633/- (rounded off) has been shown, as per accounts of the Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL GUPTA 62/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 defendant. Thereafter, a debit entry of the like amount is made in reference to the claim, allegedly deducted by Gionee, which again remained a bald averment without any supporting proof on behalf of the defendant. There is no believable explanation that came from the defendant, as to how the computation made and communicated vide Ex.PW1/17 on 05.01.2019 became corrected and rectified via email Ex.DW1/2, which has been sent after one month one week after the claimed reconciliation of account vide Ex.DW1/17. The running ledger account relied upon by the defendant vide Ex.DW1/2 does not inspire the confidence of the Court and does not stand proved, in accordance with law.
15.27 The plaintiff has not been able to prove the respective claims against the heading no.1 to 17, as asserted during the averments in the plaint and arguments on behalf of counsel for plaintiff, by substantiated proof against each of the claims, by requisite standard of proof, as per law. However, through its sole witness PW1, plaintiff has duly proved the liability of the defendant admitted itself vide Ex.PW1/17 against the revised claimed summary and the amount of Rs.12,55,470/- remained outstanding and due in favour of the plaintiff, payable by the defendant. It is not the case of the defendant that any amount has been made by defendant after 05.01.2019 and the only RTGS entry of Rs.10 lakh as on 01.08.2018, does not discharge the defendant towards the revised settled claim as per the own calculation of the defendant, duly proved by the plaintiff vide Ex.PW1/17.
15.28 Interestingly, defendant has tried to claim that an excessive amount of Rs.39 lakh was paid by the defendant in favour Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 63/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 of the plaintiff. DW1 in its cross-examination has been confronted with its reply to the legal notice Ex.PW1/20, wherein this assertion of the defendant company surfaced for the first time. On perusal of Ex.PW1/20, defendant merely reiterated the contents of Ex.PW1/20, while admitting that there has been no document placed on record to show payment of excess amount of Rs.39 Lakhs to the plaintiff. The defendant itself claims the last mail that was sent by the defendant to the plaintiff is vide Ex.DW1/2 which is dated 12.02.2019, while reply to the legal notice Ex.PW1/20 has been sent on 27.08.2019 i.e. after a period of more than six months, from the last communication and is clearly an afterthought. It is further an admitted case of the defendant that neither any counter-claim has been set up in the present suit nor any separate legal proceedings have been initiated. DW1 further failed to place on record any statement of reconciliation of accounts and/or Audit report to claim that there was outstanding amount due and recoverable, from the plaintiff to the defendant company.
15.29 In view of the aforesaid facts and reasons, plaintiff is entitled to a decree of recovery of sum Rs.12,55,470/- in its favour and against the defendant.
Issue no.1 is decided, accordingly.
ISSUE NO.2
2. Whether the plaintiff is entitled to interest, if any, if so, at what rate and for which period ? OPP.
16. By way of the present suit, plaintiff has prayed for passing Decree for a sum of Rs.35,43,627/- as principal and Rs.14,88,323/- as interest @24% per annum from 06.03.2018 to Digitally PREETI signed by AGRAWAL PREETI CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. GUPTA AGRAWAL 64/66 GUPTA (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 06.11.2019, totaling Rs.50,31,950/-, in favour of the Plaintiff and against the defendant with pendentelite and future interest @24% per annum from the date of filing of the suit till the date of realisation.
16.1 The defendant has outrightly denied any entitlement of the plaintiff to the interest claimed or any other interest, on the ground that there is no outstanding and payable by the defendant in favour of the plaintiff. Defendant has denied entitlement of any interest on the ground that there is no outstanding and recoverable from the plaintiff and infact, has tried to state that excessive amount was already paid to the plaintiff.
16.2 The plaintiff has not tendered any evidence to support its claim of interest for any credit/debits during the course of business that was existing during the business relations between the parties. After seizure of the distributorship w.e.f. 06.03.2018, the communications between the parties related to reconciliation and settlement of account between the parties. It is by way of email dated 05.01.2019 vide Ex.PW1/17 that the revised claim upon reconciliation has been intimated by the defendant to the plaintiff, which has formed a basis of deciding the entitlement of the plaintiff to recover the outstanding due and admitted amount in favour of the plaintiff from the defendant.
16.3 In the facts and circumstances, it is considered just and reasonable to allow the plaintiff to recover reasonable interest on the decretal amount pendentelite and future, till the date of its realisation. Plaintiff shall be entitled to recover interest @8% p.a. on the decretal amount of Rs.12,55,470/- from the date of filing of the suit, till date Digitally PREETI signed by AGRAWAL PREETI GUPTA AGRAWAL GUPTA CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 65/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025 of its realisation.
Issue no.2 is decided, accordingly.
ISSUE NO.5
5. Relief.
17. Keeping in view the above findings, suit of the plaintiff is decreed in favour of the plaintiff and against the defendant, for a sum of Rs.12,55,470/- alongwith interest @8% per annum, from filing of the suit till date of its realisation.
Parties to bear their own costs.
Decree sheet be drawn accordingly.
File be consigned to record room, after due completion.
Announced in the open Court today
on this 27th day of January, 2026. PREETI Digitally
signed by
AGRAWAL PREETI
GUPTA AGRAWAL
GUPTA
(PREETI AGRAWAL GUPTA)
District Judge (Commercial Court)-02
West/Tis Hazari Courts/Delhi.
27.01.2025
Dictated and pronounced on 27.01.2026
Checked and Digitally signed on 03.02.2026.
CS (Comm.) No.117/2020 Mr. Harpreet Kaur Vs. M/S P.P. Telecell marketing Pvt Ltd. 66/66 (PREETI AGRAWAL GUPTA) District Judge (Commercial Court)-02 West/Tis Hazari Courts/Delhi 27.01.2025