Delhi District Court
Through Its Managing Partner vs Pm Cucin Lube India Pvt. Ltd on 22 August, 2022
IN THE COURT OF MS. GURMOHINA KAUR, ADDITIONAL DISTRICT
JUDGE - 03, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
CNR No- DLST010042442016
CS No. : 8931/16
BST Communications LLP
909, F-4, HIG, NITI Khand-I
Indirapuram, Ghaziabad
Uttar Pradesh -201014
Through its Managing Partner
Sh. Bharat Singh ... Plaintiff
Versus
1. PM Cucin Lube India Pvt. Ltd.
Having its Registered office at
Khasra No. 351, Rishi Complex,
Near Sultan Pur Metro Station,
Mehrauli Gurgaon Road
Mehrauli (South-West Delhi)
New Delhi
2. Sh. Pawan Dhanpatrai Malhotra
Director
PM Cucuin Lube India Pvt. Ltd.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors
CS No. 8931/16
1/29
3. Mrs. Monica Malhotra
Director
PM Cucin Lube India Pvt. Ltd.
Both having office at
Khasra No. 351, Rishi Complex,
Near Sultan Pur Metro Station,
Mehrauli Gurgaon Road
Mehrauli (South-West Delhi)
New Delhi
4. 21st Century,
A Brand owned by
Defendant no. 1 to 3 and 5
C/o PM Cucin Lube India Pvt. Ltd.
Khasra No. 351, Rishi Complex,
Near Sultan Pur Metro Station,
Mehrauli Gurgaon Road
Mehrauli (South-West Delhi)
New Delhi
5. Sh. Manoj Barman
GM-Marketing,
PM Cucin Lube India Pvt. Ltd.
Khasra No. 351, Rishi Complex,
Near Sultan Pur Metro Station,
Mehrauli Gurgaon Road
Mehrauli (South-West Delhi)
New Delhi
6. Cucin Lube Italy
Cucin Lube s.r.l.
Via dell' industria 4
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors
CS No. 8931/16
2/29
62010 Treia (MC), Italy
Through its President and Founder
Mr. Luciano Sileoni
Who is also owner of brand
Creo Kitchen .... Defendants
Suit presented on : 08.09.2016
Arguments concluded on : 25.07.2022
Judgment Pronounced on : 22.08.2022
SUIT FOR RECOVERY OF RS.99,96,363/-
ALONGWITH INTEREST
JUDGMENT
(1) In short fact of the case are as under: 1.1 The Plaintiff is a Limited Liability Partnership firm duly incorporated under
the Limited Liability Partnership Act, 2008. Mr. Bharat Singh is Managing Partner of the Plaintiff and has dealt with the Defendants qua the transaction in question. The Plaintiff is engaged in the business of advertising and even management, advertisement services with various corporate and media houses.
1.2 The Defendant no. 1 is a private limited company duly incorporated with Registrar of Companies and Defendant no 2 and 3 are the Directors of Defendant no. 1. Defendant no. 5 is GM- Marketing of the Defendant no. 1. Defendant no. 4 a brand name/trade name owned and managed by Defendant no(s) 1 to 3.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 3/29 Defendant no. 6 is the company incorporated in Italy under applicable laws and had joint venture/ business agreement with Defendant no. 1 and 4 for sale and promotion of its products on PAN India basis. All the aforesaid Defendants have been transacting with the Plaintiff through its partners qua the transaction in question in their individual capacity as well as for their respective firms/ companies and thus all the Defendants are answerable and responsible for the claim of the Plaintiff.
1.3 It is averred that the Defendants through Defendants no. 1 to 5 approached the Plaintiff for advertising and publicity of modular kitchen known as "CREO Kitchens", developed by Defendant no. 6 in the form of Below the Line Publicity Event ( in short BTL). Under BTL, the Plaintiff promotes the products of its clients by booking space in Malls and Big Bazaars and other Mega Stores with the objective to build brand strength and status and congregate public to show interest in the events as well as products and services of the client. The entire promotional activity normally includes booking of space in malls and super stores, branding and fabrication of stall, hosting by male and female anchors promoters, a selfie cut-out and other promotional activities with the aid/ help of Laptop, Sound systems, Plasma TV and internet access.
1.4 It is averred that pursuant to the aforesaid approach by Defendants, the Plaintiff sent a detailed representation to the Defendants for the aforesaid BTL campaign vide email dated 27.04.2016 and by its email dated 28.04.2016, the Plaintiff also sent the budget and costing for the said campaign. Thereafter, vide BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 4/29 email dated 29.04.2016, the Defendants through Defendant no. 5 sent an email to the Plaintiff urging the Plaintiff to initiate the process.
1.5 It is averred that various meetings took place, emails were exchanged and telephonic conversations took place between the parties. Since the Defendants had limited budget they requested Plaintiff to give them list of malls and Big Bazaars for conducting the said activity for 4 days instead of 7 days as decided by them earlier. The Plaintiff, accordingly informed them about the list of cities, malls, Big Bazaars and the area alongwith the expenditure / costing etc for the event. The Plaintiff also informed them about design. The Plaintiff requested the Defendants to issue a Purchase Order securing the bookings in malls and Big Bazaars. The Plaintiff represented the Defendants that for booking of malls and super markets 100% payment is to be made to them and likewise 100% payment is to be made to various artist/ anchors and other persons who are involved in promotional activities.
1.6 It is stated that after due negotiations and deliberations, vide email dated 27.05.2016 the Defendants through Defendant no. 5 issued a Purchase Order to the Plaintiff for BTL activity in 25 Malls and 42 Big Bazaar at PAN India location. Other terms and conditions were also mentioned in the said mail including the payment terms. A sum of Rs.1,20,00,000/- (Rupees One Crore Twenty Lacs only) was decided to be payable to the Plaintiff by the Defendants. The said amount however, did not include out of pocket expenses viz. T-shirts for promoters, marketing material etc. and it was agreed that these expenses and other out of BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 5/29 pocket expenses would be paid as per actual. The payment plans, under the said Purchase order were as under:
23rd May, 2016 25% nd 2 June, 2016 35% th 5 June, 2016 20% th 10 June, 2016 20% 1.7. It is submitted that upon receipt of purchase order, the Plaintiff started executing the work. The Plaintiff had made clear that after placing the Purchase order, any cancellation, for any reasons whatsoever, would be 100% chargeable.
1.8. It is stated that while Plaintiff had been involved in making arrangements for the said BTL event, the Defendants gave it additional work for launch of CREO Kitchens for which the Defendants assured the Plaintiff that payment for the said additional work would be given to it alongwith the final payment. On the said assurance, the Plaintiff took in hand the said additional activity.
1.9. It is further averred that vide email dated 03.06.2016, the Defendants requested the Plaintiff to withhold the said promotional activity in Big Bazaars on account of lack of staff at their end. The Plaintiff duly acknowledged the same and continued its promotional activity in the shortlisted malls as per the instructions and directions of the Defendants. Against the said withholding in Big Bazaars the Defendants directed the Plaintiff to extend the promotional activity by 2 days in specified Malls and accordingly, the Plaintiff did so.
1.10. It is averred that the Plaintiff successfully completed the said event to the entire satisfaction of the Defendants. The Plaintiff prepared and supplied a detailed report of promotional events and activities to Defendants through e-mail as well as a printed document of the report.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 6/29 1.11. It is averred that after initial part payment by the Defendants, they did not comply with the payment schedule as agreed and stipulated in the Purchase Order of the Defendants. Since payments were not coming from the Defendants, the Plaintiff had to make payments to employees, anchors, towards booking of Malls etc from their own pocket. Thereafter, vide emails dated 06.06.2016, 08.06.206 and 09.06.2016, the Plaintiff requested the Defendants to release their complete payment. Alongwith the said emails, the Plaintiff attached the final invoice for payment due. Despite receipt of said mails, repeated telephonic conversations and personal meetings the Defendants did not release the balance payment. The Authorized Representative Mr. Bharat Singh personally visited the office of Defendant no. 1 on 10.06.2016 and raised Invoice bearing no. 143 dated 10.06.2016 of Rs.95,85,993/- as due and payable by the Defendants to the Plaintiff. The Defendants acknowledged the balance payment by acknowledging the receipt of said Invoice however, they sought more time to make payments on the pretext of having financial constraints and further they were expecting payments from Defendant no. 6 for the said events. Defendant no(s) 2, 3 and 5 personally assured Mr.Bharat Singh to clear the outstanding dues within couple of weeks. Later on, the Defendants stopped picking phone calls and started threatening and misbehaving with Mr. Bharat Singh upon his visit to their office. Upon the conduct of the Defendants Mr. Bharat Singh called at 100 number whereafter police came and suggested to lodge a complaint. Thereafter, a police complaint was lodged with PS Mehrauli.
1.12. It is further stated that the Defendants sent a false, frivolous and misconceived legal notice to the Plaintiff. The Plaintiff got issued a legal notice dated 20.07.2016 upon the Defendants thereby calling the Defendants to pay the BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 7/29 entire outstanding amount. The Defendants also replied to legal notice of Defendants vide reply dated 29.07.2016.
1.13. On these grounds, it is prayed that the Plaintiff is also entitled to recover a principal sum of Rs.95,85,993/- alongwith interest of Rs.4,10,370/- thus, a total of Rs.99,96,363/-. The Plaintiff is also entitled to pendente lite and future interest @18% per annum from the Defendants, who are jointly and severely liable to pay the outstanding amount.
(2) Summons for settlement of issues were directed. Service was effected upon the Defendants. The Defendants filed their joint written statement in their Defence taking defence that the present suit was filed as a counter-blast to the claim raised by Defendant no. 4 against the Plaintiff to the tune of Rs.5,63,00,000/- (Rs.63,00,000/- towards refund of payment and Rs.5,00,00,000/- towards causing loss and damage to Defendant no. 4). It is stated that the Plaintiff approached Defendant no. 4 and represented to be involved in the services of event management and after Defendant no. 4 informed the Plaintiff about the launch of CREO kitchen throughout the India and the Plaintiff assured Defendant no. 4 that it had requisite manpower, know-how and experience to undertake such an event. It is submitted that after negotiating, a purchase order was issued by Defendant no. 4 to Plaintiff clearly mentioning the terms and conditions therein and a total amount of Rs.1.20 Crore was agreed upon whereby Plaintiff was required to provide full functional booths with trained staff and advertising material and sample kitchen in 25 Malls and 42 Big Bazaars all over the country. It is stated that the payment schedule was clearly mentioned in the purchase order. It is further stated that Defendants, believing in the representation made by Plaintiff and made advance payments. It is stated that none of the Plaintiff's persons came for taking training to BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 8/29 the office of Defendant no. 4, the advertising material was not picked up from the office of Defendant no. 4, neither sample cabinets which were required to be displayed were picked up despite regular follow-up, the Plaintiff kept on delaying the matter. It is stated that on 02.06.2016, the Defendant no. 4 contacted the Plaintiff for getting an update but there was no response from Plaintiff's side and when they reached Mall, the Defendant no. 4 realized that there was no booth set up and there was no person to answer the queries or to take bookings. It is submitted that the 2 lakh brochures/pamphlets published by Defendant no. 4 on the promise of Plaintiff were lying unused in the warehouse of Defendant no. 4 and were never picked up by Plaintiff. It is stated that when they contacted the Plaintiff on 02.06.2016, the Plaintiff told them that everything was under control and there were some prior glitches which would be sorted out and Defendant no. 4 realised that it was not possible to set up all the booths at 67 locations in such short time and issued immediate instructions to cancel the booths at 42 Big Bazaar. It is stated that for 25 Malls, Defendant no. 4 was forced by Plaintiff to sent materials at its own cost and also to send representatives to provide support to staff by Plaintiff who were absolutely clueless and the Defendant no. 4 shortlisted only 12 Malls outside Delhi and sent its representatives alongwith material including sample cabinet through flights to those Malls. It is stated that it was the Plaintiff's responsibility to ensure that the advertising material and sample cabinets reached the respective Malls and were installed at Plaintiff's cost and expenses but Plaintiff very cleverly assured the Defendant no. 4 to pay the same assuring them that it would be adjusted in the final settlement of bills. It is stated that Plaintiff had done ill-planning and Defendant no. 4 already lost 2 out of 9 days and the information on the website were incorrect and even the booths were not put at the places BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 9/29 mentioned in website or were shabby and Plaintiff's staff did not have knowledge to answer the queries of customers. It is stated that the Plaintiff caused a bad name to the product of Defendant no. 4 and even the LCD installed were running blank as the Plaintiff did not pick the advertising tender to run the advertisement for CREO Kitchen on the screen for the first two days. It is stated that Defendant No. 4 had already made the payment of Rs. 63 lakh out of total Rs. 1.20 crores and because of Plaintiff's false assurance and representations, Defendant No. 4 suffered a huge loss to the tune of Rs. 5 crore as Defendant No. 4 had already spent Rs. 15 crore in its entire advertising campaign for and rather it is prayed that the Plaintiff was liable to refund the advance payment of Rs. 63 lakh received by Plaintiff along with interest @ 18 % per annum to Defendant No. 4 and also pay Rs. 5 crore as damages. All the contents of the plaint were denied by the Defendants in their written statement.
(3) In the replication, all the contents of the Written Statement were denied by the Plaintiff.
(4) Vide order dated 26.07.2017, Ld. Predecessor of this Court deleted Defendant No. 6 from the array of parties.
(5) After completion of pleadings, the following issues were framed vide order dated 14.05.2018.
(1) Whether the Plaintiff is entitled for recovery of Rs. 99,96,363/- from the Defendants who are jointly and severely liable as prayed for? OPP (2) If issue No. 1 is proved in affirmative, whether the Plaintiff is entitled to interest, if so, at what rate and for which period? OPP (3) Relief.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 10/29 (6). The Plaintiff examined Mr. Bharat Singh, Managing Partner BST as PW-1, who tendered his evidence by way of affidavit Ex.PW-1/A and relied upon the following documents:-
1. Ex.PW-1/1 (OSR) Certificate of Incorporation.
2. Ex.PW-1/2 Board Resolution (original on record).
3. Ex.PW-1/3(colly) e-mails dated 27.04.2016 and 28.04.2016 along with PPT.
4. Ex.PW-1/4 email dated 29.04.2016 with attachment.
5. Ex.PW-1/5 email dated 29.04.2016.
6. Ex.PW-1/6 email dated 03.05.2016 with attachment.
7. Ex.PW-1/7 email dated 03.05.2016 with attachment.
8. Ex.PW-1/8 email dated 04.05.2016 with attachment.
9. Ex.PW-1/9 (colly) emails dated 05.05.2016 with attachments.
10.Ex.PW-1/10 email dated 06.05.2016.
11.Ex.PW-1/11 email dated 09.05.2016 with attachment.
12. Ex.PW-1/12 (colly) email dated 09.05.2016 and two emails dated 10.05.2016 with attachment.
13. Ex.PW-1/13 (colly) email dated 11.05.2016.
14. Ex.PW-1/14 (colly) email dated 14.05.2016.
15. Ex.PW-1/15 (colly) two emails dated 15.05.2016 and two emails dated 16.05.2016.
16.Ex.PW-1/16 (colly) two emails dated 07.05.2016 and 16.05.2016 with attachment.
17.Ex.PW-1/17(colly) two emails dated 16.05.2016.
18.Ex.PW-1/18(colly) two emails dated 17.05.2016.
19. Ex.PW-1/19 (colly) three emails dated 16.05.2016, one mail dated 17.05.2016 and one mail dated 18.05.2016.
20.Ex.PW-1/20 (colly) one email dated 18.05.2016 and 19.05.2016.
21.Ex.PW-1/21(colly) one email dated 17.05.2016, two emails dated 18.05.2016 and six emails dated 19.05.2016.
22.Ex.PW-1/22 email dated 26.05.2016 with attachment.
23.Ex.PW-1/23 (colly) emails dated 24.05.2016 and 27.05.2016.
24.Ex.PW-1/24 (colly) emails dated 24.05.2016 and 27.05.2016.
25.Ex.PW-1/25 (colly) two emails dated 27.05.2016.
26.Ex.PW-1/26 (colly) emails dated 27.05.2016 and 28.05.2016.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 11/29
27.Ex.PW-1/27 (colly) five emails dated 28.05.2016 with attachment.
28. Ex.PW-1/28 (colly) two emails dated 29.05.2016 and two emails dated 28.05.2016.
29.Ex.PW-1/29 (colly) ten emails dated 28.05.2016.
30.Ex.PW-1/30 (colly) two emails dated 30.05.2016 with attachment.
31. Ex.PW-1/31 (colly) one email dated 31.05.2016 and two emails dated 01.06.2016 with attachment.
32.Ex.PW-1/32 (colly) one email dated 24.05.2016 and three emails dated 02.06.2016.
33.Ex.PW-1/33 (colly) one email dated 01.06.2016 and seven emails dated 02.06.2016.
34.Ex.PW-1/34 (colly) one email dated 24.05.2016 and five emails dated 03.06.2016.
35.Ex.PW-1/35 (colly) two emails dated 24.05.2016 and email dated 27.05.2016.
36.Ex.PW-1/36 (colly) four emails dated 05.06.2016, one email dated 04.06.2016 and one email dated 03.06.2016.
37.Ex.PW-1/37 (colly) emails dated 05.06.2016 and one email dated 06.06.2016, 08.06.2016, 09.06.2016 and 07.06.2016.
38.Ex.PW-1/38(OSR) purchase order.
39.Ex.PW-1/39 (OSR) Invoice dated 10.06.2016.
40.Ex.PW-1/40 (OSR) Police Complaint dated 18.07.2016.
41.Ex.PW-1/41 (OSR) Notice dated 20.07.2016 with postal and courier receipts.
42. Ex.PW-1/42 (OSR) Legal Notice dated 29.07.2016 with postal receipts.
43. Ex.PW-1/43 (OSR) Certificate under Section 65B Indian Evidence Act.
44.Ex.PW-1/44 (colly) C.D containing Final report of events and its printout.
(7) During his cross-examination PW-1 stated that only he dealt with all the clients on behalf of Plaintiff firm. He further stated that the day of purchase order with the Defendant company as per his mail records was 27.05.2016. He stated that the purchase order dated 27.05.2016 was on the letter head of Defendant company and stamped by 21st Century. He stated that before the said purchase order BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 12/29 approximately 6-7 meetings took place at their office at Khasra No. 351, Rishi complex, New Sultanpur, Metro Station, Mehrauli Gurgaon Road, New Delhi. He stated that the start date of campaign was 02.06.2016 and they were booked for 25 mall promotion and while negotiations they had agreed to provide 43 Big Baazar permission, for one table, standee and one Promoter. He stated that total man power was 118 for the campaign which ran between 02.06.2016 to 05.06.2016. He stated that they were not required to pick up the fliers to be distributed during campaign but on 29/30.05.2016 they were requested and approximately 8640 fliers were picked up by them with the assurance that they will be given more and these were courier on the same day to different locations. The Plaintiff brought the photocopy of the couriered receipt, which were Ex.PW-1/45 (colly)(OSR)(running into 13 pages, having 26 receipts) dated 01.06.2016. During his further cross- examination conducted on 20.08.2018, he stated that his staff Kunal Aggarwal had sent the consignment viz-a-viz the receipts Ex.PW-1/45(colly) and admitted that Ex.PW-1/45, the contents of the goods were not mentioned but added that the invoice of the vendor was with them. He stated that even on the invoice the details of the goods dispatched was not mentioned and Ex.PW-1/45 did not contain the signatures of his staff Kunal Aggarwal or of anyone else from his office. He stated that with photograph Ex.PW-1/44(colly), he could not say as to who clicked those photographs, on which date the photographs were clicked and further admitted that the photographs itself did not reflect that the location of the malls to which they pertained and he admitted that from these photographs, it was not possible to ascertain in which part of the mall was the said kiosk erected or placed. He admitted that he had not placed on record photograph showing functioning of kiosk/stall on all the four days of all 25 malls. He stated that he had place on record BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 13/29 all the e-mail communication that took place between the Plaintiff and the Defendant and other mode of communication used to telephone calls, regular meetings that used to take place between him and Mr. Pawan Malhotra, Mr. Manoj Barman and Mr. Jwala Singh. He admitted that in the communication filed by him in the court there was no document showing that any request was made by him asking the Defendants as to when the sample products to be displaced at the Kiosk/stall or when should be get the same collected nor has any document being filed that shows his communication with the Defendant asking them to provide the promotional video which was to run on a plasma T.V on the Kiosk/stall or the Anchor speech that was to be repeatedly announced at the Kiosk/stall. He admitted that as per agreement Ex.PW-1/38, it was his duty to manage the cash transaction of bookings on behalf of the Defendants at the Kiosk/stalls at mall. He further admitted that when he started the campaign on 02.06.2016 at none of the Kiosk/stall installed the sample products of the Defendant was not even placed even on 03.06.2016. He stated that it was only on 04.06.2016 and 05.06.2016 were the sample products were installed at 12 mall locations. He states that Ex.PW-1/12 is the e-mail by which the finally agreed estimates was sent by him to the Defendants and the attachment in the e-mail shows that estimate price of logistics of each mall and after 10.05.2016, no new estimate was drawn or sent by him to the Defendants and added that only a final purchase was issued in his favour by the Defendants. He admitted that as per Ex.PW-1/38 there was no reference or mention of Defendant No. 1 company. During his cross-examination conducted on 31.08.2018, he stated that there was no written agreement/contract indicating that it was required on the part of the Defendant to provide any sale representatives on those 42 Big Bazaar Kiosk/promo table. He admitted that at no point of time any BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 14/29 promo table was installed or made functional at any of the 42 Big Bazaars and added that the Defendant had informed him not to install promo table at Big Bazaar which had been communicated through e-mail, which was already part of record. He stated that cost of 42 promo tables all across India along with the staff for four days was Rs. 10 lakh and this cost was also included in the total figure of purchase order Ex.PW-1/38. He further admitted that he had not place on record any engagement of man power including Anchor, Supervisor, etc., or the expenses incurred by him for transportation, cartridge, flash printing, light rental, TV rental etc., to show that he actually did the work as claimed by him as per the Purchase Order. He stated that no service/activity in lieu of the 42 Big Bazaar was provided to the Defendant by the Plaintiff and admitted that he had not placed on record the printout of final billing details, which was attached with e-mail dated 06.06.2016 and 09.06.2016. He admitted that he had place on record e-mails of communication upto 09.06.2016, however, he had sent more e-mails, after 09.06.2016. He stated that the certificate Ex.PW-1/43 does not mention a date but added that he had appended his signature on the document few days before filing of the suit. He stated that he had received legal notice dated 18.07.2016 issued on behalf of Defendant No. 4 .i.e. Ex.PW-1/DA and stated that he had not place on record any ledger showing the payments received from the Defendants, the invoices raised upon the Defendants, or the balance due and payable by the Defendants to the Plaintiff. During his further cross-examination on 06.09.2018, he stated that he had lodged a complaint in the police on 18.07.2016 but the police did not take any action on this and it was informed to him that it was a civil dispute and the complaint was also lodged against him by Mr. Pawan Malhotra at PS Fatehpur Beri. The copy of complaint dated 18.07.2018 filed by Mr. Pawan Malholtra is BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 15/29 Ex.PW-1/DB. He stated that he had deliberately concealed material documents and raised false and frivolous bills with a view to conceal truth and to make out a false claim against the Defendants. He denied the suggestion that neither he rented the space in malls and Big Bazaar nor engaged the services of any support staff as was required as per the purchase order or that he was entitled to any claim against the Defendants. He denied the suggestion that the money taken by him from the Defendants as advance was much more than the little work done by him. He denied the suggestion because of the failure in executing the purchase order, the Defendant No. 4 suffered huge financial loss for which he was liable to pay Rs. 5 crore for causing loss and damages and refund of the amount of Rs.63 lacs paid by him to Defendant No. 4.
(8) During cross-examination of PW-1 by Ld. Counsel for Defendant No. 5, he stated that Defendant No. 5 was the General Manager Marketing of Defendant No.
5. He stated that he did not have any personal contact with Defendant No. 5 and added that Mr. Manoj Barman was working with Defendant No. 4 at the same time and from the same premises and was authorized on their behalf to signed documents, sent e-mails, make agreement and do such acts which were profitable to all Defendants.
(9) On completion of Plaintiff evidence, the Defendant examined, Mr. Pawan Malhotra, as DW-1, who tendered his evidence by way of affidavit as Ex.DW-1/X bearing his signature at point A and B and relied upon the following documents:-
1. Certificate of VAT Registration and Certificate of Importer-Exporter Code (IEC) are Mark DW-1/A (photocopy) 2 pages. Ex.DW-1/A mentioned in para no. 9 of the affidavit is De-Exhibited.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 16/29
2. Copy of payment receipts Ex.DW-1/2(OSR) 13 pages.
3. Police complaint dated 18.07.2016 is Ex.DW-1/3 (already Ex.PW-1/DB).
4. Legal Notice dated 18.07.2016 is Ex.DW-1/4 (already Ex.PW-1/DA).
5. Postal Receipt of dispatched of the legal notice are Ex.DW-1/5.
6. Courier receipt of dispatched of the legal notice are Ex.DW-1/6.
(10) During his cross-examination he stated that Defendant No. 1 was incorporated in the year 2010-2011 and there was only two Directors, he and his wife Monika Malhotra, Defendant No. 3. He stated that he was the proprietor of Defendant No. 4 which was in existence since 2008-2009. He stated that the main business of Defendant No. 1 company was trading in modular kitchen and he did similar business through his proprietorship firm. He stated that Defendant No. 4 was the authorized dealer of company namely Cucin Lube Italy in the year 2008. He stated that he had a dealership agreement with Defendant No. 4 and Cucin Lube Italy in 2008 and he did not remember but after 2016-2017, he had not been authorized dealer. He admitted that there was a website .i.e. creokitchens.in that used to managed by Defendant No. 4. He admitted that the website was in operation as on date but added that there was no updation on the website since 2016. he further stated that Mr. Manoj Barman was appointed as an employee in Defendant No. 4 in the beginning of 2016 and his designation was General Manager and he was looking after the launched of creo kitchen. He stated that he knew Mr. Manoj Barman, before he joined Defendant No. 4 and Mr. Manoj Barman was working with Defendant No. 4 either till the end of 2016 and may be in the beginning of 2017. He stated that the first meeting with the Plaintiff was held in the month of April 2016 and he had personally met with Bharat Singh, AR of the Plaintiff, who was introduced to him by Mr. Manoj Barman. He stated that the discussion between the Defendants and the Plaintiff were finalized in the month BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 17/29 of May 2016. He stated that Defendant No. 1 had nothing to do with promotional activity or launch of creo kitchen. He stated that no formal agreement was executed between the Plaintiff and them and added that they had voluntarily issued the Purchased Order to the Plaintiff wherein all the terms and conditions were mentioned. He stated that the promotional activities were to be conducted from 02.06.2016 to 05.06.2016 and there was no change from either side in the aforesaid dates. He stated that they had paid Rs. 63 lakhs to the Plaintiff before 02.06.2016 and payments were made by cash and cheque. He further stated that all their receipts acknowledging payments of the cash amount given by them to the Plaintiff were issued by the Plaintiff before 02.06.2016 but he added that some payments were made by them on 02/03.06.2016 and except the above amount no other payment was made by them. He stated during his cross-examination dated 28.02.2019, that BST Communication was given work order of Rs. 1.2 crore for display at Big Bazaar and central atrium of shopping malls. He admitted that hint advertisement had initiated Arbitration proceedings against them for recovery of Rs. 7.5 crore. He stated that no proceedings were initiated by them against any of the agencies which were engaged by them because of the non performance of the agencies they could not afford to pay court fee for the counter claim. He stated that Mr. Manoj Barman stopped coming to the office on his own and it was an implied resignation by him. He stated that he had not serve any legal notice to the Mr. Manoj Barman with relation to his performance. He stated that the list of malls and Big Bazaars were shown to him and the list was confirmed by the Plaintiff and the confirmation was given to the Plaintiff on the belief and trust that they had good experience in handling such activity. He stated that the Plaintiff was introduced to him by Mr. Manoj Barman. He stated that final approvals of malls BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 18/29 and Big Bazaars was done around 12-13 May 2016. He stated that as the date of activity for the Plaintiff was starting on 02.06.2016, by afternoon they started getting calls from visitors/potential customers that they could not see display booths on the prescribed Big Bazaar as well as few malls and as the activity was only supposed to go out for four days and the Plaintiff had wasted one day, they asked him not to go ahead with any of the Big Bazaars and the mall numbers were also reduced because of the non performance. He stated that all the Big Bazaars activities was stopped as booths not placed on the allotted days and the malls were also reduced as they were starting complaints from visitors/potential customers and they sent their employees to 12 different locations. He stated that the Plaintiff failed to pick up the goods and brochure from their office even on 02.06.2016 and goods and brochure were sent to the malls at their own costs. He denied the suggestion that the Plaintiff put the promotional activity on Big Bazaar on hold as there was shortage of man power at their end and added that man power had to be arranged by the Plaintiff. He denied that as per the e-mail dated 03.06.2016, the Defendant had directed the Plaintiff to put the Big Bazaar activity on hold as the man power at his end was not ready and added that since on 02.06.2016, the Plaintiff failed to perform and fulfill the commitment, the said e-mail suggests that the Plaintiff failed to arrange the man power and it was the Plaintiff responsibility. He stated that he was not sure about any written communication from him or his office regarding the non performance by the Plaintiff and added that on 02.06.2016, he had personally visited Great India Place Mall, Noida, but did not find any booth at Big Bazaar and booth at the Mall was at one corner, which was not even equipped and without any brochure. He stated that he had printed 2 lakhs brochure and did not remember any bill and document had been placed on record BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 19/29 regarding the same. He stated that he was only aware of one e-mail dated 04.07.2016 and regarding other e-mails he did not remember. He stated that they received on call centers that there was no person to attend them regarding the information of creokitchens. He stated that he did not remember of any details of any caller had been filed but he could submit whatsapp communication and pictures in relations to the above. He stated that two lacks brochure were printed in May 2016 from Malhotra Printers and Print Advertiser and they had handed over the brochure and pamphlets to Mr. Bharat Singh at his office but it was never picked by him to be distributed at various venues. He denied the suggestion that 8500 brochure were handed over by him to the Plaintiff which were sent across to various locations through couriers. He stated that there was no correspondence to show that the Plaintiff suggested him to get 2 lacs pamplets printed. He further denied the suggestion that only the aforesaid material was delivered by him only 02.06.2016 and not before the date. He stated that he did not remember the exact number of employees deputed by him in call centre and customer care team and added that they had not procured any POS machine for the aforesaid promotional activity. He stated that he got the cash receipt printed in the month of May 2016 and handed them over in May 2016. He denied the suggestion that completion of promotional programme, the Plaintiff handed over a detailed report with photographs of the aforesaid promotional activity and stated that after making complaints from him regarding non performance as per agreement few photographs were shared with him. He stated that he was personally checked at GIP Mall, Noida and Cyber Hub, Gurgaon on 02.06.2016 and he had received a lots of complaint from visiting customers with regard to non performance and his team members had personally gone to Mumbai, Nagpur, Chennai, Calcutta, BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 20/29 Chandigarh. He denied the suggestion that the Plaintiff is entitled to recovery of Rs. 99,96,363.
(11) On completion of Defence Evidence, despite opportunities none appeared on behalf of Defendant to address final arguments and final arguments were heard on behalf of the Plaintiff.
(12) Issue No. 1 and 2 are inter-connected and therefore adjudicated together.
(1) Whether the Plaintiff is entitled for recovery of Rs. 99,96,363/- from the Defendants who are jointly and severely liable as prayed for? OPP (2) If issue No. 1 is proved in affirmative, whether the Plaintiff is entitled to interest, if so, at what rate and for which period? OPP 12.1 The onus to prove these issues was on the Plaintiff. The Plaintiff by way of the present suit is seeking recovery of Rs. 99,96,363/- with interest and it is their case that they have provided services for advertisement and publicity for four days in terms of purchase order Ex.PW-1/38, which also included the payment terms. The Plaintiff has averrs that despite providing services and issuance of invoices dated 10.06.2016 Ex.PW-1/39, the Defendant did not raise any objection to the conduct of event of the Plaintiff and even acknowledged the same but thereafter, instead of making the payment misbehaved and threatened with the Plaintiff and even filed the false case against Mr. Bharat Singh, partner of the Plaintiff and committed cheating and fraud in a pre planned manner by leveling false and mischievous allegations.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 21/29 12.2 The Defendant, on the other hand, has claimed that a payment of Rs. 63 lacs was paid in advance to the Defendant and out of the four days, promotional activities conducted by the Plaintiff only on two days and from the 25 short listed malls and 42 Big Bazaars and the promotional activity was thereafter conducted in only 12 malls. The receipt of payment placed on record by the Defendant Ex.DW- 1/2 for payment of Rs. 63 lacs has not been denied by the Plaintiff. In fact, after exchange of e-mails Mark A, the Plaintiff has also placed on record a Legal Notice issued by the Defendant to the Plaintiff Ex.PW-1/41 on the same ground as taken in the present case and the Defendant had replied to the same vide legal notice dated 29.07.2016 Ex.PW-1/42.
12.3 It is pertinent to mention that in the present suit that both the Plaintiff and Defendant have made claims and counter claims against the purported work done by them with respect to the promotional activity to be undertaken by the Plaintiff for Defendant No. 4. It is also not in dispute that though the Defendant has denied all the avernments and claims made by the Plaintiff by way of the present suit, apart from receipt of payment and the copy of the police complaint along with legal notice, no other document has been placed on record by the Defendant in order to substantiate its contentions. However, the fact that the promotional activity was only conducted in 12 malls as against the 25 short listed malls and 42 Big Bazaars and could only be done for two days instead of four days as agreed between the parties has not been denied or contradicted by the Plaintiff during trial and no contrary corroborative proof regarding the same has been placed on record.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 22/29 12.4 The entire case of the Plaintiff hinges upon two documents as already discussed namely the purchase order dated 27.05.2016 Ex.PW-1/38 and receipt Ex.PW-1/39. For the sake of gravity these documents are reproduced as under:-
12.5 The contents of the Purchase order Ex.PW-1/38, are reproduced hereunder for the sake of brevity:-
To BST Communication LLP Dear Bharat, As per our last discussion, please find below the Purchase Order for the BTL Activity in 25 malls and 42 Big Bazar at Pan India Location.Total Number of Malls 25
In the Malls activity you have proposed 12 X 12 setup which will include all fabrication, 2 promoters, 1 Anchor, Audio Visual, Selfie Cut-out, Laptop, Internet, Plasma TV for 4 days starting from 2nd June to 5th June, 2016.Total Number of Big Bazaar 42
In the Big Bazaar Promotion Activity you have proposed on Promo Table with 1 promoter, Promotional Standee, Selfie Cut-out, Laptop, internet etc. for 4 days starting from 2nd June to 5th June, 2016.
You, will manage the entire even with maximum enrollment of targeted customer. Find attached the final list of Big Bazaar and Malls at Pan India Level, however, it can be altered according to availability of space.
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 23/29 You, will get us the complete data of customer per centre wise and also manage the cash transaction of booking which will be deposited in our bank account on the very next day of activity.
We have mutually decided a fees of Rs. 1.2 Cr. (Rs. One Crore Twenty Lac Only) for the complete activity, where we will release the payment as mentioned below:-
* 23rd May, 2016 25% * 2nd June, 2016 35% * 5th June, 2016 20% * 10th June, 2016 20% The out of pocket expenses like T-shirts for promoter, marketing material etc., would be extra over and above the budget paid on actual. Looking forward for a great BTL Campaign.
Thanks & Regards.
Manoj Barman GM Marketing 12.6. The contents of the receipt Ex.PW-1/39, are reproduced hereunder for the sake of brevity:-
Invoice no: 143 Date 10/6/2016 Pan No. AAPFB1208E Service Tax no: AAPFB1208ESD001 To 21st Century, Khasra No. 351, Rishi Complex, Near Sultan Pur Metro Station, Mehrauli Gurgaon Road BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 24/29 New Delhi-110030 91-11-26804434, 26808885, 26808886 S. No. Details Amount
1. Activation Logistic Amount for Malls 12000000
2. Total Mall rental for 25 Malls + 42 Big Bazaars
3. Additional Expenses 1726950 Total Amount 13726950 Service tax @ 15% 2059043 Net Payable Amount 15785993 Advance 6200000 Balance Payable Amount 9585993 12.7 Perusal of the above documents reflects that the entire terms and conditions were enumerated between the parties and the purchase order Ex.PW-1/38 is the document on the basis of which both the parties agreed to do the promotional activity on the terms and conditions including the schedule of release of payment.
12.8 With respect to Ex.PW-1/39 it is seen that the Plaintiff has raised an invoice no. 143 dated 10.06.2016 which includes the total rental of 25 malls and 42 Big Bazaars with activation charges of Rs. 1,20,00,000/- and additional expenses incurred of Rs. 1,72,6950/- totaling to Rs. 13,72,6950/-. The same invoice also reflect the advance of Rs. 62 lacs received from the Defendants. The record of the BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 25/29 Plaintiff also reflects that costing charges had been exchanged between the Plaintiff and the Defendant for the four days of publicity which was agreed to be from 02.06.2016 to 05.06.2016. The trail of exchange of email Mark-A further sufficiently reflects that work was performed by the Plaintiff firm only with respect to 25 malls and not 42 Big Bazaars and this factum has admittedly not been denied by the Plaintiff during trial. No question pertaining to the same have been put to the Defendant witness nor has any evidence has been lead to show that the entire work as per the purchase order was done properly by the Plaintiff. However, the Plaintiff has been unable to show the actual cost incurred by it during the two days of publicity and in fact there is no log book of work done per day by the Plaintiff placed on record. No ledger account and statement of account maintained qua the work done and the expenses incurred by the Plaintiff as stated in the plaint has been placed on record or proved during trial. In fact, the photographs Ex.PW-
1/44(colly) relied upon by the Plaintiff to show the work done are undated and during cross-examination of PW-1 by Ld. Counsel for Defendant No. 1 to 4, he himself admitted that he cannot say as to who clicked these photographs and on which date they were clicked and he further admitted that from the photographs, it was not possible to ascertain as to on which part of the mall the kiosk/stall was erected or placed and that the kiosk was installed for all four days in all 25 malls. Further, as already stated above PW-1 during his cross-examination stated that as per agreement Ex.PW-1/8, when he started the campaign on 02.06.2016, the sample product of the Defendants were not placed on 02.06.2016 and 03.06.2016 and he further admitted that the sample products was installed only on 4 th and 5th June 2016 only at 12 malls. He further admitted during his cross-examination that there was no promotion table installed or made functional at any of the 42 Big BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 26/29 Bazaars and the cost of placing these 42 promo tables was Rs. 10 lacs which was included in the total cost of purchase order Ex.PW-1/38. He further admitted that the final billing details attached in e-mail dated 06.06.2016 and 09.06.2016 had not been placed on record. It also requires mentioning that the copy of the courier receipt Ex.PW-1/45 do not mention the amount charged or the description of goods. Perusal of the same only reflects that it contains the name of the Plaintiff and the name of the recipient, which are not the Defendants in the present suit. No other document in this regard has been placed on record. Therefore, the Defendant has been able to show during cross-examination that the promotional activities were done only in 12 malls. Even in the replication apart from merely denying the contentions of the Defendants that promotional activities were conducted only in 12 malls, no document or any other proof has been put forth by the Plaintiff to rebut the allegations so made. In fact, during cross-examination, the Plaintiff's sole witness PW-1 crumbled.
12.9 In this context it is also worth mentioning that the Plaintiff firm was in receipt of Rs. 62,90,000/-, which is proved as Ex.DW-1/2 and is also reflected in Ex.PW-1/39. Since, the promotional activities were done only for two days and in limited number of malls with limited number of stalls and for the fact that the Plaintiff has not been able to place on record any other details of additional expenses incurred by it, the Plaintiff has to show that it was entitled to a recovery of Rs. 99,96,363/- as claimed by him in the present suit. It is a settled position of law that the Plaintiff who comes to the court must stand on his own legs and any lacuna in the Defendant case cannot be a ground for granting relief to the Plaintiff. Of course, the test in the civil suit would be preponderance of probability but it is never preponderance of mere possibility. One of the cardinal principles of civil law is BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 27/29 that in civil cases burden of proof is that of balance of probability and not that of beyond reasonable doubt. The issue in the civil matter have to be decided on balance of probabilities (Ref. Sona Bala Bora vs. Jyotirindra Batacharjee, Suit no. 270/13 - 8- Delhi Dioceasan Trust Association vs. I.N. Qureshi 2005 (4) SCC 501). The Hon'ble Delhi High Court in Rameshwar Dass vs. Hakim Javed 2012 (187) DLT 73 observed that a civil case is decided on balance of probabilities. The balance of probabilities is arrived at after weighing the respective evidence which is led by both the parties (Also Ref. Food Corporation of India vs. Sarvshri Bal Karan 2012 (186) DLT 87). The various dictionaries defines probability as :
i. A measure of how likely it is that some event will occur; a number expressing the ratio of favourable cases to the whole number of cases possible. ii. The quality of being probable; a probable event or the most probable event or the most probable event.
iii. Likely to be true or likely to happen.
iv. How likely something is.
v. The quality of state of being probable.
vi. Something (as an even or circumstance that is probable) that is probable. vii. A logical relation between statements such that evidence confirming one confirms the other to some degree.
12.10 Taking into consideration the various definitions of the word probability, in a trial balance of probability would mean what the court believes how likely some state of facts are on the basis of which legal rights can be determined by the court either to give or deny the relief claimed in a suit. If after weighing the evidence the court believes existence of certain fact or considers its existence probable, in civil cases rights can be determined on the basis, though the court may entertain certain BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 28/29 doubts but such doubt should not of such quality which completely shakes the foundation of belief about existence or non existence of certain facts.
12.11 The Plaintiff has failed to adduce any substantive oral and documentary evidence to show its entitlement for recovery of the amount as the Plaintiff has already received Rs. 62,90,000/- from the Defendant and in the considered opinion of this court, in view of the limited service provided by the Plaintiff to the Defendant, nothing remains due against the Defendant.
12.12 Accordingly, in view of the aforesaid facts and observations adumbrated above nothing remains due and payable by the Defendant to the Plaintiff and issue no. 1 and 2 are decided against the Plaintiff.
RELIEF
13. The upshot of the above discussion is that the present suit is hereby dismissed. No order as to cost.
File be consigned to record room.
Pronounced in open Court ( Gurmohina Kaur)
on 22.08.2022 Additional District Judge-03,
South District, Saket Courts
New Delhi
BST Communications LLP vs. PM Cucin Lube India Pvt. Ltd & ors CS No. 8931/16 29/29