Delhi District Court
Rajesh Kumar Jain vs Tata Tele Services Ltd on 2 September, 2025
IN THE COURT OF PULASTYA PRAMACHALA,
DISTRICT JUDGE (COMMERCIAL COURT-01),
PATIALA HOUSE COURTS, NEW DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Memo of Parties 2
2 Description of Case 3-13
3 Issues 13
4 Plaintiff's Evidence 14-16
Issue No.1
5 Arguments of Plaintiff 16-17
6 Arguments of Defendant 17-19
7 Analysis of Arguments, Facts and Law 19-35
7 Issue No.2 35-44
8 Issue No.3 44-49
9 Issue No.4 49
10 Issue No.5: Relief 49
Digitally
signed by
PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
2025.09.02
18:25:30
+0530
CS (COMM.) 39/2021 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page 1 of 49 Patiala House Court, New Delhi
CS (COMM.) 39/2021
In the matter of: -
Rajesh Kumar Jain
S/o Late Sh. Rattan Lal Jain
Proprietor Edge Technologies
Through its Attorney Mr. Ajay Jain
R/o-1/9875, Gali No-1, West Gorakh Park,
Shahdara, Delhi-110032.
Mob: 9871553635
Email: [email protected],
[email protected]
...Plaintiff
Versus
Tata Teleservices Ltd.,
Through its Director/Authorized Signatory,
Tenth Floor, Tower-I, Jeevan Bharati,124,
Connaught Circus, New Delhi-110001.
Also At:
Office at-2A, Old Iswar Nagar,
Main Mathura Road, New Delhi-110065
Email: [email protected],
[email protected]
[email protected],
[email protected]
Whatsapp: 9029099899,9250006076, 9212107452
...Defendant
Date of Institution : 03.02.2021
Conclusion of arguments : 11.08.2025
Date of Judgment : 02.09.2025
Decision : Suit is dismissed.
CS (COMM.) 39/2021 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page 2 of 49 Patiala House Court, New Delhi
JUDGMENT
DESCRIPTION OF CASE
1. Present suit has been filed by the plaintiff against the defendant for specific performance and recovery of amount. Briefly stated the facts of the case are that the plaintiff is a senior citizen of 71 yrs of age and is the proprietor of M/s Edge Technologies. Plaintiff authorized his son Mr. Ajay Jain vide GPA dated 18.04.2017, who was fully conversant with the facts of the present suit, to file and represent him in this case.
2. Plaintiff was in the field of marketing of services and was associated with the TATA company and defendant for marketing its services and products on a commission basis. The plaintiff had specialization and well reputed networks in providing Higher Data Connectivity Services to the corporates and big institutions since September 2004. In 2009, plaintiff signed Channel Partner agreement with Tata Communications Ltd. and started association with Tata communications Ltd. as Channel partner to sell/market their product and services to the corporates, which was renewed in the years 2010 and 2011 by the Tata Communications Ltd. Later on, on the basis of internal policy and strategy of TATA, Tata Communications Ltd. shifted their channel business segment and merged it with Tata Tele services Ltd. with a communication of Business Strategy to the Channel Partners that they would sell product and service portfolio of Tata Communications Ltd. and Tata Teleservices Ltd. both. On the basis of this migration, a fresh partner agreement dated 20.09.2012 was signed between Tata Teleservices Ltd. and CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 3 of 49 Patiala House Court, New Delhi plaintiff. The said agreement was further renewed vide agreement dated 08.04.2016. In the year 2014-2015, defendant had announced incentive program scheme known as "FLY HIGH SCHEME" for the period from December 2014 to March 2015. Looking at the performance of the plaintiff for sales and promotion of the defendant's company business, the defendant categorized the plaintiff in the 'EXCLUSIVE CLUB-LCM CATEGORY" and offered the other associated partners on the basis of targets. The aforesaid scheme was applicable for all regions within the territory. The silent features of the scheme introduced by the defendant company are as under: -
(a) Defendant categorized partners in different category and announced incentives accordingly and on the basis of past experience and performance of plaintiff, defendant's company kept the plaintiff in the "EXCLUSIVE CLUB-
LCM CATEGORY" offering the associated partners on the basis of targets.
(b) The Scheme/offer was target based on the basis of their category, whereas it was offered that if any of the partners in "The Exclusive Club" which the plaintiff belonged to, did business of Rs.12 Lakhs (R. 1.44 Crore annually) or more, in installed monthly recurring charges (MRC- Monthly Recurring Charges), in scheme period of 01.12.2014 to 31.03.2015, such partner was to be qualified and entitled for Mauritius Trip and Rs.50,000/- cash award. The top 11 partners had to avail this award. Whereas in same category, if any partner did business of install monthly recurring charges (MRC) of Rs.22,00,000/- or more (Rs. 2.64 Crore annually), CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 4 of 49 Patiala House Court, New Delhi then business partner was to be qualified for Fortuner SUV (vehicle) in addition to Mauritius Trip and Rs.50,000/- award and the business partner who topped among the 11 partners, was to get this car. At the same time a super bumper prize was also announced on target of Rs.40 Lakhs MRC (Rs.4.8 Crore Annually) or more, which business offer was open for all categories business partners, wherein if any partner in any category was able to do Rs. 40 Lakh or more installed business during the scheme period, then he or she was entitled for Super Bumper Prize of "Mercedes Benz" and top performing partner who would have done more than Rs.40 lakhs MRC business, was to get this award. For the calculation of all announced prizes, business done for TTSL, TCISL and TCL i.e. all the Telecom, Network connectivity and Internet Services Provider Sister concerned companies of the defendant's company, was to be considered installed during the scheme period.
(c) The period of the said scheme/offer commenced with effect from 01.12.2014 upto 31.03.2015 (four months) and it was clearly mentioned that the Data source would include for SFDC (Tata Communications Limited), DIIMS (Tata Communications Internet Services Limited), POS, TTL- ICOMS (Tata Teleservices Limited) systems i.e. all the concern of the defendant company.
3. Case of the plaintiff is that he had been acting diligently and he made sincere efforts for completion of the sales target and in accordance with the said general offer/scheme, the plaintiff worked for an amount of approximately Rs.42.85 Lakhs monthly CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 5 of 49 Patiala House Court, New Delhi recurring charges (MRC) (approx. Rs.5.14 Crore annually) during the said scheme period. On that basis the defendant announced the plaintiff as a scheme winner in the month of August, 2015 and awarded him the trip to Mauritius and a cash reward of Rs.50000/- in the month of December 2015. Even, as per scoreboard flashed on 18.03.2015 & 30.03.2015 by the defendant considering performance till the period upto 26.03.2015, the plaintiff had achieved an MRC of Rs. 35,41,619/- (approx. Rs. 4.25 Crore annually) by then.
4. It has been further averred that on 30.09.2016 bumper prize results were announced in another category of partner, but Super Bumper & Bumper prize results were not announced in "The Exclusive Club-LCM Category". However, on enquiry, it was communicated by defendant that no one had qualified for Fly High Scheme Super Bumper and Bumper prize results in "The Exclusive Club-LCM Category". It has been further averred that when the son of the plaintiff asked for the reason for not showing plaintiff as being qualified for the super bumper & bumper prize, the defendant via email dated 04.10.2016 replied that the shared scoreboard was prepared considering both TTL as well as TCL business, but Bumper and Super Bumper prizes were calculated on the basis of TTL MRC only. However, no reason was assigned as to why the scorecard was not considered for Super Bumper & Bumper prize, when the same was considered for other prizes. Thereafter, plaintiff kept on communicating through email from March 2016 till March 2019 approximately for three years for the purpose of releasing the super bumper prize. The plaintiff kept on inquiring to give Super Bumper prize, however on 10.04.2017, CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 6 of 49 Patiala House Court, New Delhi defendant gave clarity that company management had changed the scheme policy for Super Bumper and Bumper Prize internally, while announcing the results. Plaintiff has pleaded that the same was not only an illegal act but also against the basic principles of business.
5. It has been further averred that the plaintiff's son highlighted this matter to the Middle Management of defendant on the basis of clause no. 11.3 of the agreement in the month of January 2018 and after their intervention, 1st meeting was held with Senior Management on this matter on 8th March 2018 with CEO Mr. Harjit Singh Chauhan, who denied for the disbursal of prize with a reason given as low profits on revenue of Tata Communications Ltd. product & services and so not considering revenue of Tata Communications Ltd. for calculation of Super Bumper prize and Bumper prize, whereas TCL revenue was considered for Mauritius Trip and Rs.50,000/- award of the scheme. On 10 th March 2018, the plaintiff sent mail to the defendant for further pursuing the matter and asked for the scheme disbursal. After the denial from Senior Management, first legal notice was given by the plaintiff in the month of June 2018. Thereafter, on the basis of clause 11 of the agreement, new notice of arbitration was given to the defendant in November 2018 and parallel proceedings on mails were again initiated with the top management of the defendant. Thereafter, in the 2 nd meeting with the CEO Harjit Sigh Chauhan, he had offered Rs.8,00,000/- for full and final settlement of said scheme prize from 14.02.2019 till 13.03.2019, which was declined by the son of the plaintiff. There had been other disputes including recovery of commission CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 7 of 49 Patiala House Court, New Delhi of Rs.10,47,369/- along with other reliefs also pending between the parties.
6. Thereafter, plaintiff filed an application under Section 11 of Arbitration & Conciliation act, 1996 before the Hon'ble High Court of Delhi, which was withdrawn as it was orally communicated by the Registry Branch that as per terms and conditions of the agreement, the territorial Jurisdiction for any arbitration proceedings was at Mumbai. Thereafter, plaintiff filed arbitration application no. 252/2019 before Hon'ble High Court of Judicature at Bombay, which was dismissed on the grounds that there was no arbitration clause as per the agreement dated 20.09.2012 executed between plaintiff and defendant.
7. On these premise, the present suit for specific performance or in alternate recovery of amount has been filed by the plaintiff against the defendant, seeking a direction for defendant to perform its part of the contract as per contract incentive program scheme for the period from December 2014 to March 2015 i.e. "Fly High Scheme" and to deliver the Super Bumper prize of Mercedes Benz GA with compensation of Rs.27,40,000/- as interest on car value till period of January 2021 and further interest till prize/amount not realized; or in alternate to pay Rs.40,00,000/- the value equivalent to the Super Bumper Prize along with interest of Rs.27,40,000/- from the period of 16 th May 2015 to 31st January 2021 and further interest till amount realized besides legal expenses of Rs. 3,00,000/-.
8. Before filing of the suit, plaintiff approached New Delhi DLSA for Pre-Litigation Mediation on 25.09.2020, and defendant CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 8 of 49 Patiala House Court, New Delhi appeared but it was not inclined to participate in mediation. Non- starter report dated 24.11.2020 has been filed by plaintiff along with the plaint.
9. Summons of the suit was issued to the defendant, which appeared through AR before the court and filed written statement. In the written statement, the defendant has denied and disputed all the allegations, averments and contentions of the plaintiff in the present suit. It has been averred that this court does not have jurisdiction to adjudicate the present dispute between the parties in terms of Clause 11.3 of the agreement dated 20.09.2012 and the jurisdiction is vested in Mumbai courts. In support of the same, the defendant has placed reliance on the judgments passed by the Hon'ble Supreme Court of India i.e. Swastik Gases Pvt. Ltd. vs. Indian Oil Corp. Ltd., (2013) 9 SCC 32 and EXL Careers vs. Frankfinn Aviation Services Pvt. Ltd., (2020) 12 SCC 667.
10. It is further pleaded that the claim of the plaintiff is barred by limitation as the claim has been made much after the three-year period, as the incentive scheme ended on 31.03.2015 and the results, with which the plaintiff is supposedly dissatisfied, were communicated to the plaintiff on 03.10.2016. It is averred that continuous emails/correspondences between the parties did not extend limitation unless it reflected acknowledgment of liability. The defendant placed reliance upon the judgments Boota Mal vs. Union of India, (1963) 1 SCR 70 and CLP India Pvt. Ltd. vs. Gujarat Urja Vikas Nigam Ltd., 2020 SCC OnLine SC 445.
11. It has been further averred that the time during which the CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 9 of 49 Patiala House Court, New Delhi plaintiff had initiated proceedings before the Hon'ble High Courts of Delhi and Bombay cannot be excluded when computing the period of limitation, inasmuch as the said proceedings were not initiated in good faith as the same were without due diligence. It has been further averred that the plaintiff admittedly withdrew the petition from the Hon'ble High Court of Delhi at the defects stage itself i.e. even before the petition was numbered and listed, and the petition before the Hon'ble Bombay High Court was dismissed summarily on the ground that admittedly the subject agreement did not have any arbitration clause.
12. On merits, it is averred that plaintiff is not entitled to the relief being sought inasmuch as the plaintiff clearly did not qualify for the super bumper prize under the Incentive Scheme. It is further pleaded that the plaintiff cannot self-proclaim to be the winner of the prize under the incentive scheme. The plaintiff was bound by the terms and conditions of the incentive scheme, which permitted the defendant to modify the terms of the incentive scheme without giving any reason or prior notice. It has been further averred that for Fly High Super Bumper Prize-Mercedes Benz GLA Qualifying gate was Rs.40 L and as per the terms and conditions of the Incentive Scheme qua the same, the decision of Company on the said offer was to be final and no queries on same was to be entertained. Program was open for the above terms and could be extended for further such period at the sole discretion of company. This program could not be combined with any other program or scheme during the above period and the Company reserved the right to change the terms and conditions CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 10 of 49 Patiala House Court, New Delhi of this program, and to alter or discontinue that offer without prior notice or any part thereof without giving any reason or due notice. The Program participant agreed that they had understood the terms and conditions of the Program.
13. It has been further averred that the plaintiff did not qualify for the super bumper prize as the plaintiff failed to do 40 Lakhs MRC for the defendant/TTL, even though it supposedly did more than 40 Lakhs MRC cumulatively for both the defendant and TCL as per its record. It has been further averred that while the plaintiff claims to have done approx. 42 Lakhs MRC for both the defendant and TCL during the Scheme Period as per its record, the defendant's record reflects that it had done approx. 36 Lakhs cumulative MRC for the defendant and TCL and in any case, it is irrelevant what MRC the plaintiff did cumulatively for both the defendant and TCL, because as per the defendant's management's decision, the qualifying gate of 40 Lakhs MRC for the super bumper prize was for the defendant alone as the MRC towards TCL did not commercially benefit the defendant and as such, the defendant had nothing to gain from offering the super bumper prize for MRC towards TLC. Thus, the plaintiff, who only did approx. 1.07 Lakhs MRC for the defendant alone, failed to even qualify for the super bumper prize.
14. It has been further averred that the plaintiff did not achieve the stated target of 40 lakhs installed monthly recurring charges ("MRC") therefore, plaintiff was not entitled to the super bumper prize of a Mercedes Benz GLA car under the Incentive Scheme. It has been further averred that plaintiff did qualify for the CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 11 of 49 Patiala House Court, New Delhi incentive of a Mauritius Trip and Rs. 50,000/- under the Incentive Scheme and the plaintiff has admittedly already been granted and has availed the prize of a trip to Mauritius and Rs.50,000/- for which plaintiff was qualified under the Incentive Scheme. The plaintiff has already been awarded the prize, which he had qualified under the incentive scheme and has availed the benefit of the same in 2015-16 itself. It has been further averred that the defendant's management took a decision to award the super bumper prize for Rs. 40 Lakhs MRC only for the defendant and not cumulatively for the defendant and TCL and this decision cannot be questioned by the plaintiff under any circumstance.
15. It has been further averred that offer to pay Rs. Eight Lakh by the defendant to the plaintiff was expressly communicated as a goodwill gesture only, for the long-standing relationship with the plaintiff and not as any acknowledgment of liability by the defendant as is clear from the defendant's email dated 13.03.2019 to the plaintiff and as such there is no question whatsoever of the limitation period extending or restarting on account of any acknowledgment etc. by the defendant. It has been further averred that following the email and a meeting held between the plaintiff and the defendant on 08.03.2019, despite the defendant's effort for meaningful discussions and offer of Rs. Eight lakh purely as a good will gesture only for the long standing relationship, the plaintiff refused as it wanted to bargain for the super bumper prize. It has been further averred that the defendant has acted in accordance with the Incentive Scheme and the plaintiff cannot now be permitted to force the defendant into granting him the super bumper prize. On these premise, the CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 12 of 49 Patiala House Court, New Delhi defendant has prayed for the dismissal of the present suit.
16. Rejoinder was filed by the plaintiff to the written statement of the defendant controverting the preliminary objections as not sustainable and further denying and controverting the averments of the written statement on its merits. The plaintiff has reiterated its averments contained in the plaint.
ISSUES
17. From the pleadings and the material on record, vide order dated 16.12.2021, following issues were framed by the court: -
1. Whether suit has been filed by the plaintiff within limitation period? OPP.
2. Whether this court has territorial jurisdiction to entertain and try the suit in view of the partnership agreement between the parties, if in negative, its effect? OPP.
3. Whether the plaintiff is entitled for the decree of specific performance of contract or in alternate the recovery of the suit amount, if so in what extent? OPP.
4. Whether the plaintiff is entitled for interest, if so, for which period, at what rate and on what amount? OPP
5. Relief, if any.
18. After framing of issues, the matter was referred to the Mediation Centre for amicable settlement which could not be settled as per the report of the Mediation Centre, as reflected in order dated 21.02.2022. On the said date, the plaintiff filed an application under Order 14 Rule 5 CPC for framing additional issues which was dismissed by the court vide order dated 19.05.2022. On 01.06.2022, case management proceedings was drawn and dates were fixed for plaintiff's evidence, defendant's evidence and final arguments.
CS (COMM.) 39/2021 (Pulastya Pramachala)
District Judge (Commercial Court)-01,
Page 13 of 49 Patiala House Court, New Delhi
PLAINTIFF'S EVIDENCE
19. In order to prove his case, the plaintiff examined his son Sh. Ajay Jain as PW-1 being General Power Attorney holder of the plaintiff, who tendered his evidence by way of affidavit exhibited as Ex. PW1/A. The affidavit in evidence Ex. PW1/A is the verbatim reproduction of the plaint and PW-1 Sh. Ajay Jain also relied upon documents such as: -
S. No. Documents Exhibit
1. Non starter certificate of pre-mediation Ex.PW-1/1
2. General power of attorney Ex. PW1/4
3. Channel Partnership Agreement of 2012 Ex. PW1/5
4. Fly High Scheme Ex. PW1/6
5. Scheme dash board, scheme result Ex.PW-1/7 announcement, scheme Mauritius Trip and (Colly) cash award prize distribution
6. Relevant mail communications between Ex.PW-1/8 2016 to 2019 (Colly).
7. Copy of order of Hon'ble High Court Ex.PW-1/9 Mumbai on arbitration clause
8. Channel partnership agreement of 2010 and Ex.PW-1/10 2011
9. Previous scheme result Ex.PW-1/11 (colly)
10. Attested copy Bank interest document Ex.PW-1/12
11. Proof of SFDC belongs to Tata Ex.PW-1/13 Communication Ltd. From page no.9 to 49) (Colly)
12. Copy of subsequent agreement, security Ex.PW-1/14.
money, ledger of plaintiff, payment clearance confirmation and copy of invoice
13. Copy of whatsapp message between AR of Ex.PW-1/15.
CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 14 of 49 Patiala House Court, New Delhi S. No. Documents Exhibit plaintiff and business head of the defendant during August 2018 to November 2018
14. Copy of query raised by defendant to Ex.PW-1/16.
plaintiff in April 2016
15. Copy of proof of mail communication Ex.PW-1/17 regarding migration of Tata Communication Ltd. Business and channel partners from Tata Communications ltd. To defendant (TTSL)
16. Certificate under Section 65 B of Indian Ex.PW-1/18.
17. copy of Adhar Card Ex.PW-1/19.
20. This witness did not rely upon the documents mentioned in his affidavit Ex.PW-1/A as Ex.PW-1/2 and Ex.PW-1/3 and they were de-exhibited. The witness was cross examined on behalf of the defendant and vide separate statement, Sh. Ajay Jain closed plaintiff's evidence.
21. The defendant did not examine any witness in the present case and on 25.08.2022, Ld. Counsel for the defendant submitted that the defendant did not want to lead any evidence in defence and in view of the submissions of the Ld. Counsel for the defendant, the opportunity to lead evidence by the defendant was closed by the court on the said date i.e. 25.08.2022.
22. I heard Sh. Deepak K. Agarwal, Ld. counsel for the plaintiff with PW1, and Sh. Tanmay Jain and Sh. Kunal Singh, Ld. counsels for the defendant. I have also gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during the trial. I CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 15 of 49 Patiala House Court, New Delhi have also gone through the written submissions filed by the Ld. counsels for the parties.
23. My issue-wise findings in the present matter are as under: -
Issue No.1: Whether suit has been filed by the plaintiff within limitation period? OPP.
ARGUMENTS OF PLAINTIFF
24. Onus to prove this issue was on the plaintiff. Ld. counsel for the plaintiff argued that the present suit is within limitation inasmuch as the present suit was filed by the plaintiff after the top management of the defendant company refused to settle the dispute amicably and refused to pay any money to the plaintiff on 14.03.2018 via email, whereas the results were communicated to the plaintiff on 03.10.2016 regarding the plaintiff not qualifying in the incentive scheme. He further argued that the breaking point or right to sue arose on 14.03.2018 when the top management of the defendant finally refused to make the payment to the plaintiff. He further argued that the limitation to file the present suit had to expire on 14.03.2021, whereas the present suit was filed by the plaintiff in January 2021. He further argued that since the present suit was filed during Covid period and the benefit of order dated 10.01.2022 passed in Suo Motu Writ Petition (C) No.3 of 2020 is to be extended to the plaintiff, therefore, period between 15.02.2020 to 28.02.2022 has to be excluded in computing the period of limitation and as such the present suit is within limitation. He further argued that before instituting the present suit, the plaintiff had filed arbitration petition under Section 11 of the Arbitration and Conciliation Act, CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 16 of 49 Patiala House Court, New Delhi 1996 before the Hon'ble Delhi High Court and Hon'ble Bombay High Court between 31.02.2019 (Petition filing date before the Hon'ble Delhi High Court) to 07.10.2019 (date of Section 11 of Arbitration and Conciliation Act, 1996 petition dismissed by the Hon'ble Bombay High Court), the said period is liable to be excluded for the purpose of computation of period of limitation. He further argued that the plaintiff and the defendant were negotiating with each other to resolve the issue amicably and the email dated 14.03.2018 sent by the defendant to the plaintiff is breaking point to initiate any legal proceedings on behalf of the plaintiff. In support of his contentions, the plaintiff placed reliance upon the citations viz Shakti Bhog Food Industries Ltd. vs. The Central Bank of India, 2020 AIR (SC) 2721, M/s Welspun Enterprises Ltd. vs. M/s NCC Ltd., 2022 (295) DLT 286, M/s B AND B TAG vs Ministry of Defence Arbitration Petition (C) No. 13 of 2023, Geo Miller & Company Pvt. Ltd. vs. Chairman, Rajasthan Vidyut Utpadan Nigam Ltd., (2020) 14 SCC 643, Hari Shankar Singhania & Ors vs. Gaur Hari Singhania & Ors, (2006) 4 SCC 658, P.D. Pillai vs. Mrs. Kaliyanikutty Amma and Ors of Hon'ble Kerala High Court dated 29.06.1994, Food Corporation of India vs. Assam State Cooperative, Appeal (Civil) 2259 of 1999.
ARGUMENTS OF DEFENDANT
25. On the other hand, Ld. counsel for the defendant argued that the present suit, which was filed on 22.01.2021, is barred by limitation as the same was instituted after the expiry of three years period of limitation. He further argued that the Incentive Scheme ended on 31.03.2015 and the period of limitation to file CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 17 of 49 Patiala House Court, New Delhi the present suit had expired on 31.03.2018. He further argued that alternatively, even assuming that the limitation period commenced from 03.10.2016 when the plaintiff was informed by the defendant that he had not qualified for the super bumper prize under the scheme, the limitation period to file the present suit expired on 02.10.2019. It was argued that right from 03.10.2016, the defendant never admitted any liability towards the plaintiff in respect of the super bumper prize under the Incentive scheme and even the offer of Rs. 8 Lakhs to settle pending issues, was made only as a goodwill gesture on account of long-standing relationship with the plaintiff and was not an acknowledgment of any liability of the defendant and therefore, there is no question of the limitation period having been extended or the same restarting on account of any acknowledgment. It was further argued that continuous emails/correspondences between the parties could not have stopped the period of limitation from running, unless the emails/correspondences reflected acknowledgment of liability, which is not the case herein. In support of his contentions, Ld. counsel for the defendant placed reliance upon the judgments viz Boota Mal vs Union of India, (1963) 2 SCR and CLP India Pvt. Ltd. vs. Gujarat Urja Vikas Nigam Ltd., 2020 SCC Online SC 445. Ld. counsel further argued that the time spent in proceedings before the Hon'ble High Courts of Delhi and Bombay cannot be excluded when computing the limitation period, as these proceedings were not instituted in good faith and were done without basic due diligence as the plaintiff withdrew the petition from the Hon'ble Delhi High Court after being informed by the Registry that CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 18 of 49 Patiala House Court, New Delhi Clause 11.3 of the agreement vested exclusive jurisdiction in Courts in Mumbai and the Hon'ble Bombay High Court summarily dismissed the petition of the plaintiff on the ground that there was no arbitration clause in the agreement.
ANALYSIS OF ARGUMENTS, FACTS AND LAW
26. When a plea of limitation is taken, it is the duty of the Court to adjudicate the same at first instance. The object of the Limitation Act is to extinguish the stale demands. The principle upon which the laws of limitation are based is, that it is in the interest of the State that remedies for violated rights should be sought in court without delay. Thus, the object of the statute is to make the litigant public vigilant in pursuing its remedy and also to prevent harassment to the opposite party by bringing stale claims before the legal forum after long gap of time. It primarily bars a remedy for a litigant but does not extinguish the right. The law of limitation is said to prevent persons from enforcing their own rights, and disputing the rights of others, after a certain period of time. In Jones vs. Bellgrove Properties Ltd., (1949) 2 KB 700, it was observed that ".....If a claim is made for payment of a debt many years after it has been incurred, there may be difficulty in proving that the debt ever was in fact incurred or that it has not already been paid and so forth. That is why the law bars the right of action after a certain period has elapsed from the accrual of the cause of action........" Again in R. B. Policies at Lloyd's v. Butler, (1950) 1 KB 76, it was said that "I agree with Mr. Atkinson that it is a policy of the Limitation Acts that those who go to sleep upon their claims should not be assisted by the Courts in recovering their property, but another, and, I think, equal CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 19 of 49 Patiala House Court, New Delhi policy behind these Acts, is that there shall be an end of litigation, and that protection shall not be afforded against stale demands."
27. Para 25 of the plaint regarding cause of action is reproduced as under: -
"25 That the cause of action to file the present suit arose firstly when the defendant failed to perform his part of contractual incentive program scheme for the period from December 2014 to March 2015 i.e. " FLY HIGH SCHEME". It further arose when the plaintiff successfully completed the works assigned to him on 31st March 2015 i.e. as per the scheme/offer. It further arose when the defendant and the plaintiff orally agreed according to the said scheme/offer which ultimately becomes a contract. It further arose in favor of the plaintiff and against the defendant when the part of contract had been completed on behalf of the defendant i.e. when the plaintiff completed Mauritius trip and availed the amount of Rs.50,000/-. It further arose in favor of the plaintiff and against the defendant when there were E-mail communications exchanged between the plaintiff's son and defendant. It further arose in favor of the plaintiff when he was kept following the defendant for update on announcement & distribution of Super Bumper Prize where defendants raised unnecessary queries those were not part of scheme. It further arose when the plaintiff gave reply to the queries raised by the officials of the defendant and kept asking for distribution of Super Bumper Prize as per scheme policy where Defendant continued to make false representation by stating that it is under reconciliation and will be announced soon. The cause of action also arose in favor of the plaintiff and against the defendant when the team of the Defendant informed the plaintiff that the offer/scheme was ultimately closed and no benefit/prize would be given to the plaintiff in the Month of April 2017. The cause of action also arose in favor of the plaintiff and against the defendant when attorney/son of The Plaintiff escalated this matter to the Middle Management and Top Management in January 2018 and CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 20 of 49 Patiala House Court, New Delhi February 2018, the Management of the Defendant informed the plaintiff & denied any solution and communicated no benefit/prize would be given to the plaintiff. The cause of action lastly arose in favor of plaintiff and against the defendant when plaintiff issued legal notice dated 29.06.2018 & dated 3.11.2018, after issuances of legal notices and re- escalation to the Top Management in March 2019 when the Senior Management of Defendant offered Rs. 8,00,000/- (Rupees Eight Lakh only) to settle this matter of scheme and informed the plaintiff that no other benefit/prize would be given to the plaintiff. Thus, the cause of action is continuously running since then."
28. Section 18 of the Limitation Act is as under: -
"18. Effect of acknowledgment in writing.- (1) Where, before the expiration of the prescribed period of a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
1. Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral evidence of its contents shall not be received".
29. To constitute a valid acknowledgment there must be a definite or clear admission of the existing liability. It does not create any new right of action but only enlarges the time and has the effect of making a new period run from the date of acknowledgment. In order to fall within the provisions of Section 18, the acknowledgment, if any, has to be made prior to the expiration of the prescribed period for filing the suit. Once limitation period prescribed has expired, it would not revive under this section. It CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 21 of 49 Patiala House Court, New Delhi is only during subsistence of a period of limitation, if any, such document is executed, that the limitation would be revived afresh from the date of acknowledgment.
30. There is no dispute between the parties herein that Partner Agreement dated 20.09.2012 was executed between the plaintiff and the defendant. There is also no dispute between the parties that in the year 2014-2015, an Incentive Program Scheme known as 'FLY HIGH SCHEME' was announced by the defendant for the period from 01.12.2024 to 31.03.2015, wherein the plaintiff was categorized in the 'EXCLUSIVE CLUB-LCM CATEGORY'. It is admitted case of the plaintiff that bumper prize results were announced by the defendant on 30.09.2016 in another category of partner but Super Bumper & Bumper prize results were not announced in 'The Exclusive Club-LCM Category' and on 03.10.2016, it was communicated to the son of the plaintiff that no one qualified for Fly High Scheme Super Bumper & Bumper prize results in 'The Exclusive Club-LCM Category'. PW-1 Sh. Ajay Jain also admitted during cross examination that on 03.10.2016, it was informed to the plaintiff that the plaintiff had not qualified for the Super Bumper Prize. Apparently, the cause of action for filing the present suit firstly arose on 03.10.2016 and the present case has been filed by the plaintiff against the defendant on 03.02.2021 i.e. after more than four years.
31. The plaintiff has heavily relied upon the email dated 14.03.2018 sent by the defendant to the son of the plaintiff and stated that the breaking point or right to sue arose on 14.03.2018 and thus, the CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 22 of 49 Patiala House Court, New Delhi present suit is within limitation. The said email dated 14.03.2018 is reproduced as under: -
"Ajay, I had explained at length the reason behind not awarding the super bumper prize. There is no rationale for considering you for an award in the 'The club' category either. What was justifiable-Mauritius trip and Cash component-has already been awarded. I had hoped that after our discussion, you would have moved on but clearly that doesn't seem so. You are free to pursue the matter in the way you want but please notice that our decision in this matter is final.
Regards Harjit"
32. It is apparent from this email that the defendant has nowhere acknowledged it liabilities towards the plaintiff in the present case. It is admitted case of the plaintiff in email dated 30.09.2016 Ex. PW1/8 that bumper prize of Fly High Scheme was announced by the defendant and the plaintiff raised query to the defendant to know about Bonanza Prize and vide email dated 03.10.2016 Ex. PW1/8, the son of the plaintiff was informed by the defendant that as per the confirmation received from concerned team, no one had qualified for the Fly High Scheme Bonanza Prize.
33. Perusal of Ex.PW1/8 shows that there are various emails exchanged between the son of the plaintiff and the defendant, more particularly starting from 03.10.2016 till 14.03.2018 and in all the emails, the son of the plaintiff has mostly raised the queries as to why no one has qualified for the Fly High Scheme Bonanza Prize. Plaintiff's son had been asserting that the plaintiff had installed MRC of Rs. 42.8 lac during the scheme period.
CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 23 of 49 Patiala House Court, New Delhi Questions were raised viz. When the scheme policy had been changed by the defendant; Why the policy was not changed during scheme period; Why the same had been changed after 1.5 years of scheme closure and why only TTL MRC had been considered by the defendant for bumper and super bumper prize. Perusal of emails Ex. PW1/8 further shows that time and again the plaintiff raised same queries to the defendant during the period from 03.10.2016 till 14.03.2018 and in replies to the same, from 04.10.2016 onwards, the defendant time and again communicated to the plaintiff through email that for bumper and super bumper prize, the defendant had considered only TTL MRC and the plaintiff did not qualify for bumper and super bumper prize. The defendant vide email dated 10.04.2017 also highlighted the terms and conditions of the scheme program and stated that vide said terms and conditions, the defendant company reserved the right to change the terms and conditions of this program and alter or discontinue this offer without prior notice or any part thereof without giving any notice or due notice. Perusal of the emails sent by the defendant to the son of the plaintiff clearly shows that the defendant at no point of time admitted its liabilities towards the plaintiff in any of the emails sent by the defendant to the son of the plaintiff. On the parameters of Section 18 of the Limitation Act, it cannot be inferred from any angle that the defendant made definite/clear admission of existing liability qua the plaintiff.
34. It is also the case of the plaintiff that before instituting the present suit, the plaintiff had filed arbitration petitions under Section 11 of the Arbitration and Conciliation Act, 1996 before CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 24 of 49 Patiala House Court, New Delhi the Hon'ble Delhi High Court and before Hon'ble Bombay High Court and the said period is liable to be excluded for the purpose of computation the period of limitation.
35. It is case of the plaintiff in the pleadings and in the evidence that in good faith, the plaintiff had filed application under section 11 of Arbitration & Conciliation Act, 1996 before the Hon'ble High Court of Delhi bearing Arbitration Application (dairy) No. 1238 of 2018, but the same was withdrawn as it was orally communicated by the Registry Branch that as per terms and conditions of the agreement the territorial jurisdiction for any arbitration proceedings lay at Mumbai.
36. It is also case of the plaintiff in the pleadings and in the evidence that the plaintiff had filed a petition under Section 11 of Arbitration & Conciliation Act, 1996 bearing arbitration application no. 252/2019 before the Hon'ble High Court of Judicature at Bombay, which was dismissed on 07.10.2019 on the grounds that there was no arbitration clause as per the agreement dated 20.09.2012 executed between plaintiff and defendant.
37. The order dated 07.10.2019 passed by Hon'ble High Court of Judicature at Bombay in Arbitration Application (L) No. 252/2019 is on the record, which has been exhibited as Ex. PW1/9 and the same is reproduced as under: -
"1. Heard the learned Advocates appearing for the parties.
2. Admittedly, there is no Arbitration Clause in the Agreement dated 20th September, 2012. In view thereof, the above petition is dismissed.
38. The plaintiff has prayed for exclusion of period under Section 14 CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 25 of 49 Patiala House Court, New Delhi of the Limitation Act during which the aforesaid petitions under Section 11 of the Arbitration and Conciliation Act, 1996 remained pending before the Hon'ble High Court of Delhi and the Hon'ble High Court of Judicature at Bombay.
39. To better appreciate the contentions of the parties, Section 14 of the Limitation Act, 1963 is reproduced which as under: -
"14. Exclusion of time of proceeding bonafide in Court without jurisdiction.-(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, where in a court of first instance or of appeal or revision against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908) the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature. Explanation.- For the purposes of this section-
(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 26 of 49 Patiala House Court, New Delhi
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a lime nature with defect of jurisdiction."
40. Section 14 of the Limitation Act has been enacted by the legislature to exempt a period covered in a genuine litigious activity and to protect a litigant against the bar of limitation, when a proceeding is dismissed on account of a technical defect instead of being decided on merits. The intent is to prevent a litigant from being saddled with an adverse decision, which is, on account of the fact that the Court did not have the jurisdiction to entertain the case.
41. Section 14 (1) of the Limitation Act provides that in computing the period of limitation for any suit, the time during which the plaintiff had been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance, or of appeal or revision, against the same party, for the same relief, shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it. The conditions for exclusion are that the earlier proceedings should have been for the same relief, the proceedings should have been prosecuted diligently and in good faith and the proceedings should have been prosecuted in a forum which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it.
42. The Hon'ble Supreme Court of India in a case titled as Consolidated Engineering Enterprises vs. Principal Secretary, CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 27 of 49 Patiala House Court, New Delhi Irrigation Department & Ors, (2008) 7 SCC 169, while elaborating on the principles laid down in a case titled as Madhavrao Narayanrao Patwardhan Vs. Ramkrishna Govind Bhanu and Ors, AIR 1958 SC 767, has pithily put the conditions which must be satisfied for applicability of Section 14 of the Limitation Act, which are as under: -
"(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;
(5) Both the proceedings are in a court...."
43. It has further been held in the Consolidated Engineering case (supra) that to attract the provisions of Section 14 of the Limitation Act, all five pre-conditions have to co-exist. It is not enough if only some of these pre-conditions are present, all these must exist side by side.
44. So, what is good faith? The Hon'ble Supreme Court in Madhavrao Narayanrao case (supra) has clarified that since the Limitation Act provides for its own definition of good faith, the definition as contained in General Clauses Act, 1897 would not apply.
45. Good faith is defined in Section 2(h) of the Limitation Act as: -
"2. Definitions. - In this Act, unless the context otherwise requires- ....
(h) "good faith"--nothing shall be deemed to be done in good CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 28 of 49 Patiala House Court, New Delhi faith which is not done with due care and attention;"
46. The Hon'ble Supreme Court of India in the Madhavrao Narayanrao case (supra) while discussing the term 'due care and attention' in the context of Section 14 of the Limitation Act, has held that what needs to be seen is whether the plaintiff has brought on the record any evidence to show that he was prosecuting the previously instituted suit with due diligence.
47. The measure of due diligence and prosecuting in good faith, is to be decided on the facts of each case. The Hon'ble Supreme Court in the Consolidated Engineering case (supra) has explained this principle in a succinct manner below: -
"31. To attract the provisions of Section 14 of the Limitation Act, five conditions enumerated in the earlier part of this judgment have to co-exist. There is no manner of doubt that the section deserves to be construed liberally. Due diligence and caution are essential prerequisites for attracting Section 14. Due diligence cannot be measured by any absolute standards. Due diligence is a measure of prudence or activity expected from and ordinarily exercised by a reasonable and prudent person under the particular circumstances. The time during which a court holds up a case while it is discovering that it ought to have been presented in another court, must be excluded, as the delay of the court cannot affect the due diligence of the party. Section 14 requires that the prior proceeding should have been prosecuted in good faith and with due diligence. The definition of good faith as found in Section 2(h) of the Limitation Act would indicate that nothing shall be deemed to be in good faith which is not done with due care and attention. It is true that Section 14 will not help a party who is guilty of negligence, lapse or inaction. However, there can be no hard-and-fast rule as to what amounts to good faith. It is a matter to be decided on the facts of each case. It will, in almost every case be more or less a question of degree. The mere filing of an application in wrong court would not prima facie CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 29 of 49 Patiala House Court, New Delhi show want of good faith. There must be no pretended mistake intentionally made with a view to delaying the proceedings or harassing the opposite party. In the light of these principles, the question will have to be considered whether the appellant had prosecuted the matter in other courts with due diligence and in good faith."
48. Applying the principles set forth in the Consolidated Engineering case and the Madhavrao Narayan Rao case, what needs to be seen as to whether the pre-conditions 'co-exist' in the facts and circumstances of the present case. As per Section 14 of the Limitation Act, 1963, the plaintiff has to show that he was bonafidely and with due diligence pursuing its petitions before the Hon'ble High Court of Delhi and the Hon'ble High Court of Bombay.
49. As asserted by PW/1 Ajay Jain, son of the plaintiff in the pleadings and in the evidence by way of affidavit Ex. PW1/A that the application under Section 11 of Arbitration & Conciliation Act, 1996 filed by the plaintiff before the Hon'ble High Court of Delhi bearing Arbitration Application (dairy) No. 1238 of 2018, was withdrawn by the plaintiff as it was orally communicated by the Registry Branch that as per terms and conditions of the agreement, the territorial Jurisdiction for any arbitration proceedings was at Mumbai.
50. However, except the bald averment of the plaintiff, there is nothing on record to show that the plaintiff had filed any application under Section 11 of Arbitration & Conciliation Act, 1996 before the Hon'ble High Court of Delhi bearing Arbitration Application (dairy) No. 1238 of 2018. It is the case of the plaintiff that the plaintiff had withdrawn the said application as it CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 30 of 49 Patiala House Court, New Delhi was orally communicated by the Registry Branch that as per terms and conditions of the agreement, the territorial Jurisdiction for any arbitration proceedings was at Mumbai. Perusal of Business Partner Agreement dated 20.09.2012 shows that there is no arbitration clause in the said agreement. Further the plaintiff has not placed on record any other agreement, if any, which the plaintiff had relied upon in the aforesaid application before the Hon'ble High Court of Delhi on the basis of which, as per the case of the plaintiff, the Registry Branch had communicated to the plaintiff that as per terms and conditions of the agreement, the territorial Jurisdiction for any arbitration proceedings was at Mumbai. In the absence of any material to show filing of application/petition before the Hon'ble High Court of Delhi, this court is of the opinion that there is nothing on record to show that the plaintiff was prosecuting the said application under Section 11 of Arbitration & Conciliation Act, 1996 before the Hon'ble High Court of Delhi, or that it was done with due diligence and in good faith.
51. So far as the petition under Section 11 of Arbitration & Conciliation Act, 1996 bearing arbitration application no. 252/2019 filed by the plaintiff before the Hon'ble High Court of Bombay is concerned, as has been stated by the plaintiff in the pleadings and in the evidence by way of affidavit Ex. PW1/A of PW-1 Sh. Ajay Jain, the said petition was dismissed on 07.10.2019 on the grounds that there was no arbitration clause as per the agreement dated 20.09.2012 executed between plaintiff and defendant. The order dated 07.10.2019 passed by the Hon'ble High Court of Bombay in Arbitration Application (L) CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 31 of 49 Patiala House Court, New Delhi No. 252/2019 is also on record which has been exhibited as Ex. PW1/9 and perusal of the same shows that the Hon'ble High Court of Bombay in Arbitration Application (L) No. 252/2019 had observed that admittedly, there was no Arbitration Clause in the Agreement dated 20th September, 2012 and accordingly, the said petition was dismissed.
52. The main ingredients required for attracting the principles under Section 14 of the Limitation Act, 1963 are that the party should be prosecuting another civil proceedings with due diligence and that the prosecution should be in good faith and the earlier proceedings and latter proceedings must relate to the same matter in issue. It is not enough that one part is satisfied. All conditions must co-exist as has been held Consolidated Engineering case (supra).
53. However, in the facts of the present case as discussed above, it cannot be said that there was due diligence on the part of the plaintiff in prosecuting the applications under Section 11 of the Arbitration and Conciliation Act, 1996 before the Hon'ble High Court of Delhi or before the Hon'ble High Court of Judicature at Bombay. Thus, the plaintiff having not prosecuted his applications under Section 11 of the Arbitration and Conciliation Act, 1996 before the Hon'ble High Court of Delhi and before the Hon'ble High Court of Judicature at Bombay with due diligence and good faith, is not entitled for the application of the principles under Section 14 of the Limitation Act, 1963.
54. Plea of the plaintiff regarding the date from which limitation is to be counted is also based on wrong conception of law. As per the CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 32 of 49 Patiala House Court, New Delhi case of plaintiff itself, on 03.10.2016 he was communicated by the defendant that no one had qualified for the Fly High Scheme Bonanza Prize. Thus, the cause of action to challenge such decision of the defendant first accrued on 03.10.2016 itself. Just because son of plaintiff/PW1 had been repeatedly taking up the matter with different officials of defendant to resolve the issue, it cannot be said that cause of action accrued on 03.10.2016, became extinct. The limitation has to be counted from the date when for the first time cause of action accrued in favour of the plaintiff. The subsequent communications wherein some more details came out, could not have stopped the limitation which had already started to run since 03.10.2016. Thus, the period of limitation to file the present suit lapsed on 02.10.2019.
55. Plaintiff/PW1 though claimed benefit of S.14 of Limitation Act, but neither in the pleading nor in the affidavit of PW1, they even referred to particular date of filing petition before Hon'ble High Court of Delhi and subsequently before Hon'ble Bombay High Court. It was just in the argument that the date of filing of petition in Hon'ble High Court of Delhi was mentioned. Record is totally silent in respect of the period, which was spent by plaintiff before Hon'ble High Court of Delhi and before Hon'ble Bombay High Court, on account of pendency of petition under Section 11 of the Arbitration & Conciliation Act.
56. Ld. counsel for the plaintiff sought benefit for the period from 31.02.2019 up to 07.10.2019. First of all, there could not be any date like 31st February and apparently a wrong date was so mentioned in the arguments. Subsequently, even if any benefit CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 33 of 49 Patiala House Court, New Delhi under Section 14 of the Act was to be given, for that purpose the benefit could have been given only regarding the period for which such petition remained pending before afore-said two courts. But as already observed herein-above, plaintiff has remained totally silent in respect of the date of filing and withdrawal of petition before Hon'ble High Court of Delhi and in respect of the date of filing of the petition before Hon'ble Bombay High Court. The claim of giving benefit for the complete period from 31.02.2019 to 07.10.2019 is completely misconceived and even beyond the scope of Section 14 of Limitation Act. Even to avail such benefit it was duty of the plaintiff to place on the record and prove the relevant evidence to show the exact period spent before Hon'ble High Court of Delhi and Hon'ble Bombay High Court.
57. In such circumstances, even otherwise plaintiff cannot be given any benefit and consequentially the fact remains that limitation period to file this suit expired on 02.10.2019. Plaintiff cannot be entitled for benefit of the order passed by Hon'ble Supreme Court on account of Covid-19 Pandemic to give benefit for the purpose of limitation in respect period between 15.02.2020 to 28.02.2022, because the limitation period to file this suit had already expired before 15.02.2020.
58. Apparently, there is no such categorical acknowledgment of the liability on the part of defendant, so as to extend the period of limitation. The proposal of giving Rs.8 lacs in lieu of claim of the plaintiff, was merely a proposal for the purpose of settlement of the dispute, rather than acknowledgment of his liability. Hence, I CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 34 of 49 Patiala House Court, New Delhi find that this suit was filed beyond the period of limitation and accordingly, this issue is decided against the plaintiff.
Issues No.2: Whether this court has territorial jurisdiction to entertain and try the suit in view of the partnership agreement between the parties, if in negative, its effect? OPP.
59. Onus to prove this issue was upon the plaintiff. Ld. counsel for the plaintiff argued that this court has got territorial jurisdiction to try and entertain the present suit as the registered office of the defendant is at Connaught Circus, Delhi, agreement was signed between the parties in Delhi, the documents were signed in Delhi, the plaintiff deposited the security money from its account situated at Delhi, all business related activities, work, meeting, coordination, communication were done in Delhi by both the parties, the defendant paid commission and incentives to bank account of the plaintiff situated in Delhi, Stamp paper for the purposes of executing the agreement was purchased from Delhi, Clause no.9 of the agreement clearly defines the address of notices of both the parties which is Delhi, the defendant always used his official seal containing Delhi address, plaintiff raised all the invoices at defendant's Delhi address, all the pre-litigation dispute reconciliation between the parties took place in Delhi office, all the training was conducted by the defendant in Delhi for the plaintiff and its team and all discussion between the parties regarding payment of commission arising out of the said agreement happened in Delhi. He further argued that neither any cause of action happened in Mumbai nor principal registered office of any of the parties in dispute was situated there. He CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 35 of 49 Patiala House Court, New Delhi further argued that agreement between the parties does not have jurisdiction to adjudicate the dispute between the parties and principal of 'debtor seeking the creditor' is applicable to the present case inasmuch as it is the defendant who has to pay the due amount to the plaintiff who is admittedly stationed in Delhi. In support of his contentions, Ld. Counsel for the plaintiff placed reliance upon the citations such as M/s Patel Roadways Ltd. Bombay vs. M/s Prasad Trading Co., 1991 (4) SCC 270 and M/s Auto Movers vs. Luminous Power Technologies Pvt. Ltd., CM (M) No. 604/2020.
60. On the other hand, Ld. counsel for the defendant argued that in view of Clause 11.3 of the Agreement dated 20.09.2012, this court does not have jurisdiction to adjudicate the present dispute, as exclusive jurisdiction over disputes between the parties has been vested in Courts in Mumbai. It was further argued that Incentive Scheme is part and parcel of the agreement dated 20.09.2012 and the Incentive Scheme does not provide any dispute resolution mechanism and the same will be governed by Clause 11.3 of the said Agreement. It was further argued that with respect of validity and enforceability of such exclusive clauses, the Hon'ble Supreme Court of India has repeatedly affirmed in a number of judgments that parties to a contract can opt to include an 'exclusive jurisdiction' clause to limit the dispute proceedings to be initiated within the valid jurisdiction of one particular court, thereby excluding other courts which also might have valid jurisdiction. In support of his contentions, Ld. counsel for the defendant has placed reliance to the judgments viz Swastik Gases Pvt. Ltd. vs. Indian Oil Corp. Ltd, (2013) 9 CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 36 of 49 Patiala House Court, New Delhi SCC 32 and EXL careers vs. Frankfin Aviation Services Pvt. Ltd., (2020) 12 SCC 667 and argued that in view of the same, the jurisdiction to adjudicate the present dispute lies exclusively with Courts in Mumbai.
61. The jurisdiction clause as contained in Para-27 of the plaint reads as under: -
"27. That the plaintiff resides and work for gain at Delhi. The agreement between the parties was executed at Delhi and the registered office of the defendant is also situated at Delhi and the entire cause of action also arose in Delhi. Hence, this Hon'ble Court has territorial jurisdiction to try and entertain the present petition/suit."
62. To discharge the onus to prove this issue, PW-1 Sh. Ajay Jain in the deposition before the court relied upon Business Partner Agreement dated 20.09.2012 exhibited as Ex. PW1/5. Clause 11.3 of the Business Partner Agreement dated 20.09.2012 executed between the parties is reproduced as under: -
"11.3 All dispute, controversies, claims or differences which may arise between the Parties, out of or in relation to or in connection with this Agreement, or for the breach thereof including, but not limited to, any Commission related disputes (individually and collectively, a 'Dispute'), shall be resolved by the Parties in accordance with the procedures set forth in this Section. For any Dispute arising under or related to the Agreement, the Parties shall cooperate in good faith to resolve the Dispute amicably. In the event of any Dispute, upon the written request of either Party, each of the Parties shall appoint, within five (5) business days after a Party's receipt of such request, a designated representative who has authority to settle the Dispute and who is at a higher level of management than the persons with direct responsibility for administration of this Agreement. The designated representatives shall meet as often as they reasonably deem necessary in order to discuss the CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 37 of 49 Patiala House Court, New Delhi Dispute and negotiate in good faith in an effort to resolve such Dispute. The specific format for such discussions will be left to the discretion of the designated representatives; provided however, that all reasonable requests for non-privileged information directly relevant to the Dispute made by one Party to the other Party shall be honored. The Parties agree that any dispute that cannot be resolved informally as provided above, shall be brought and maintained only in a court of competent jurisdiction located in Mumbai. The Parties each consent to the jurisdiction and venue of such courts and waive any objection to such jurisdiction and venue. The Party prevailing on a majority of claims in any such action shall be entitled to recover its litigation costs and expense, including reasonable attorneys' fees."
63. From the perusal of Clause 11.03 of the Business Partner Agreement dated 20.09.2012 executed between the parties exhibited as Ex. PW1/5, it is apparent that the Parties had agreed that "any dispute that cannot be resolved informally as provided in the said Clause, the dispute shall be brought and maintained only in a court of competent jurisdiction located in Mumbai". It is also apparent from the said Clause that the parties had consented to the jurisdiction and venue of competent courts located in Mumbai and had waived any objection to such jurisdiction and venue.
64. There are number of decisions wherein the Hon'ble Supreme Court of India has held that where there may be two or more competent courts, which can entertain a suit consequent upon a part of the cause of action having arisen therein, if the parties to the contract agree to vest jurisdiction in one such court to try the dispute which might arise as between themselves, such agreement would be valid and binding.
CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 38 of 49 Patiala House Court, New Delhi
65. The Hon'ble Supreme Court of India in a case titled as A.B.C. Laminart (P) Ltd. vs. A.P. Agencies, (1989) 2 SCC 163, held that:-
"21. From the foregoing decisions, it can be reasonably deduced that where such an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other courts. When the clause is clear, unambiguous and specific accepted notions of contract would bind the parties and unless the absence of ad idem can be shown, the other courts should avoid exercising jurisdiction. As regards construction of the ouster clause when words like "alone", "only", "exclusive" and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim "expressio unius est exclusio alterius" -- expression of one is the exclusion of another -- may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed."
66. In Hanil Era Textiles Ltd. vs. Puromatic Filters (P) Ltd. (2004) 4 SCC 671), it was held by the Hon'ble Supreme Court of India that where two or more courts have jurisdiction under the Code, it is permissible to have an agreement between the parties restricting the place of suing to any one of them and if such restriction is place in the agreement, the same cannot be said to be contrary to public policy and does not contravene Section 28 of the Contract Act. It was however, made clear that such restriction cannot be made and the parties cannot by agreement confer jurisdiction on a court which otherwise it does not possess under the Code. In this judgment, the Hon'ble Supreme Court has considered the scope of Section 20 of the Code and by CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 39 of 49 Patiala House Court, New Delhi referring to the said provision, it was held that when ouster clause is clear, unambiguous and specific, accepted notions of contract would bind parties and unless absence of ad-idem can be shown, courts should avoid exercising jurisdiction. While arriving at the said finding, the Hon'ble Supreme Court followed the ratio laid down in A.B.C. Laminart (P) Ltd. (supra) as under:-
"The aforesaid legal proposition settled by this Court in respect of territorial jurisdiction and applicability of Section 20 of the Code to Arbitration Act is clear, unambiguous and explicit. The said position is binding on both the parties who were contesting the present proceeding. Both the parties with their open eyes entered into the aforesaid purchase order and agreements thereon which categorically provide that all disputes arising between the parties out of the agreements would be adjudicated upon and decided through the process of arbitration and that no court other than the court at Jaipur shall have jurisdiction to entertain or try the same. In both the agreements in clause 30 of General Conditions of the Contract it was specifically mentioned that the contract shall for all purposes be construed according to the laws of India and subject to jurisdiction of only at Jaipur in Rajasthan Courts only and in addition in one of the purchase order the expression used was that the Court at Jaipur only would have jurisdiction to entertain or try the same".
67. The Hon'ble Supreme Court of India in a case titled as Rajasthan State Electricity Board vs. M/s Universal Petro Chemicals Ltd., 2009 AIR SCW 607 held that: -
"22. .........There is indeed an ouster clause used in the aforesaid stipulations stating that the courts at Jaipur alone would have jurisdiction to try and decide the said proceedings which could be initiated for adjudication and deciding the disputes arising between the parties with or in relation to the aforesaid agreements through the process of arbitration. In other words, even though otherwise the Courts at Calcutta CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 40 of 49 Patiala House Court, New Delhi would have territorial jurisdiction to try and decide such disputes, but in view of the ouster clause it is only the courts at Jaipur which would have jurisdiction to entertain such proceeding.
27. An analytical look at the provisions of sub-Sections (3) and (4) will make it explicitly clear that any application in any reference, meaning thereby even an application under Section 20 of the Act could or should be filed in a court competent to entertain such proceeding and having jurisdiction to decide the subject of the reference. Such jurisdiction would or could be restricted by the agreements entered into by and between the parties. The parties have clearly stipulated and agreed that no other court, but only the court at Jaipur will have jurisdiction to try and decide the proceedings arising out of the said agreements, and therefore, it is the Civil Court at Jaipur which would alone have jurisdiction to try and decide such issue and that is the court which is competent to entertain such proceedings. The said court being competent to entertain such proceedings, the said Court at Jaipur alone would have jurisdiction over the arbitration proceedings and all subsequent applications arising out of the reference. The arbitration proceedings have to be made at Jaipur Court and in no other court."
68. In a recent decision rendered in Indus Mobile Distribution Private Limited vs. Datawind Innovations Private Limited & Others, Civil Appeal No.5370-5371 of 2017 (decided on 19-4- 2017), while again following the decision rendered in Swastik Gases Private Limited (supra) and B.E. Simoese Von Staraburg Niedenthal (supra), it has been observed in para 21 as under: -
"21. It is well settled that where more than one court has jurisdiction, it is open for parties to exclude all other courts. For an exhaustive analysis of the case law, see Swastik Gases Private Limited Vs Indian Oil Corporation Limited , (2013) 9 SCC 32. This was followed in a recent judgment in B.E. Simoese Von Staraburg Niedenthal and Another Vs. Chhattisgarh Investment Limited, (2015) 12 SCC 225. Having CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 41 of 49 Patiala House Court, New Delhi regard to the above, it is clear that Mumbai courts alone have jurisdiction to the exclusion of all other courts in the country, as the juridical seat of arbitration is at Mumbai. This being the case, the impugned judgment is set aside. The injunction confirmed by the impugned judgment will continue for a period of four weeks from the date of pronouncement of this judgment, so that the respondents may take necessary steps under Section 9 in the Mumbai Court."
69. The above-mentioned case laws have mentioned two basic requirements to invoke the exclusive clause. First basic requirement is that there must be jurisdiction of courts of more than one place, and second requirement is that one particular court out of such courts, was conferred exclusive jurisdiction by way of an agreement between the parties. It is basic and well settled law that two parties cannot confer jurisdiction upon a court, which otherwise would not have jurisdiction to entertain and try such case.
70. In M/S Interglobe Aviation Ltd vs N. Satchidanand, 2011 AIR SCW 6308, reiterating the law in this respect, Hon'ble Supreme Court observed that: -
"It is now well settled that the parties cannot by agreement confer jurisdiction on a court which does not have jurisdiction; and that only where two or more courts have the jurisdiction to try a suit or proceeding, an agreement that the disputes shall be tried in one of such courts is not contrary to public policy. The ouster of jurisdiction of some courts is permissible so long as the court on which exclusive jurisdiction is conferred, had jurisdiction."
71. Same stand was taken by the court in the cases of Hakam Singh (supra) and A.B.C. Laminart Pvt Ltd. v. A.P. Agencies, (1989) 2 SCC 163. Therefore, it has to be first seen that whether the courts at Mumbai would have any jurisdiction in the present case. In CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 42 of 49 Patiala House Court, New Delhi this respect, it is worth to mention that admittedly the agreement between the parties was executed at Delhi. The notice of the plaintiff was sent to defendant at their Delhi addresses and reply thereto also mentioned the address of defendant pertaining to Delhi itself. Defendant might be having his other office in Mumbai or may be head office in Mumbai, but now it is also well settled law that it would be such office of the defendant, which had been dealing with the plaintiff for the purpose of subject matter of lis, which will be relevant to determine the jurisdiction.
72. In this respect, it is relevant to refer to judgment passed in the case of Piccadily Agro Industries Ltd. v. Ashok Narwal & ORs. MANU/DE/0628/2016, wherein Hon'ble Court observed that: -
"26. In the light of the aforesaid, it is clear that if on a reading of the plaint and the documents filed by the plaintiff, it appears that defendant no.2 has a subordinate office within the jurisdiction of the courts in the State of Haryana - where the cause of action has arisen, then the suit could be brought by the plaintiff against the defendants only in the State of Haryana where the cause of action arises, and not at Delhi where the registered office of defendant no.2 is situated, unless, of course, the plaintiff is able to establish that a part of cause of action has arisen within the jurisdiction of this Court.
28. I now proceed to examine whether any part of cause of action can be said to have arisen within the jurisdiction of this Court merely because defendant no.2 takes its business decisions regarding manufacture and marketing of the impugned product at its registered office in Delhi and it maintains its books of account in Delhi, and takes its administrative decisions in Delhi at its registered office.
32. I agree with the submission of Mr. Kirpal that if the excuses given by the plaintiff for invoking the jurisdiction of this Court CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 43 of 49 Patiala House Court, New Delhi were to be accepted on the ground that defendant no.2 has taken its business decisions in Delhi at its registered office, and on the ground that defendant no.2 is obliged to maintain its record and accounts at its registered office in Delhi, then in every case it would be possible to file the suit against a defendant corporation at the place where its registered office is situated - even when no cause of action has arisen within the jurisdiction of the Court, where the Registered Office is situated, and the Corporation has a subordinate office where the cause of action has arisen, thereby completely nullifying the scheme contained in Section 20(c) read with its explanation."
73. The concept of cause of action involves such act or omission taking place at a particular place, which the plaintiff would be required to prove in order to establish his claim. In the present case, it cannot be said that any cause of action took place within the territorial jurisdiction of Mumbai. Hence, in view of afore- said legal principles, by virtue of above-mentioned clause in the agreement, jurisdiction could not have been conferred upon the courts at Mumbai and in that situation the suit having being filed in Delhi, cannot be questioned by the defendant. Accordingly, this issue is decided against the defendant.
Issue No. 3: Whether the plaintiff is entitled for the decree of specific performance of contract or in alternative the recovery of the suit amount, if so in what extent? OPP
74. Onus to prove this issue was upon the plaintiff. Before adverting further, it is worthwhile to mention that it is settled preposition of law that the initial burden to prove the case is upon the plaintiff and the plaintiff has to stand of his own leg to prove the case. Section 101 of the Indian Evidence Act (which was in operation at the relevant time) lays down as under: -
CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 44 of 49 Patiala House Court, New Delhi "1) Whosoever desires any court to give judgment as to any legal right or liability dependent upon the existence to facts which he asserts must prove that those facts exists.
2) When a person is bound to prove the existence of any fact, it is said that burden of proof lies on that person."
75. As per section 101 of the Evidence Act, the burden of proof had been on the plaintiff as he wanted the Court to give judgment as to the legal right dependent on the existence of facts, which he asserted. Section 16 (c) of the Specific Relief Act casts an obligation upon the plaintiff to prove that he has already performed the essential terms of the contract, which were to be performed by the plaintiff. Further, it is mandatorily required under Section 16 (c) of the Specific Relief Act and a bare averment in the plaint or a statement made in the examination-in- chief would not suffice. It is the mandate of the statute that the plaintiff has to comply with Section 16 (c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit.
76. The Incentive Program Scheme known as 'FLY HIGH SCHEME' was announced by the defendant for the period from 01.12.2024 to 31.03.2015. PW1 deposed that looking at the performance of the plaintiff for sales and promotion of the defendant's company business, the plaintiff was categorized by the defendant in the 'EXCLUSIVE CLUB-LCM CATEGORY'.
77. PW-1 Sh. Ajay Jain further deposed that the plaintiff acted diligently as per the said offer/scheme, completed the target and made sincere efforts for completion of the sales target as desired CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 45 of 49 Patiala House Court, New Delhi by the defendant and in accordance with the said general offer/scheme, the plaintiff has worked for an amount of approximately Rs.42.85 Lakhs monthly recurring charges (MRC) (approx. Rs.5.14 Crore annually) during the said scheme.
78. On the other hand, it is the case of the defendant that the plaintiff did not achieve the stated target of 40 Lakhs installed monthly recurring charges 'MRC' and therefore, the plaintiff was not entitled to the super bumper prize of a Mercedes Benz GLA car under the Incentive Scheme. Though the defendant has admitted that as per the defendant's record, the plaintiff had done approx. 36 Lakhs cumulative MRC for the defendant and TCL, whereas as per the defendant's management's decision, the qualifying gate of 40 Lakhs MRC for the super bumper prize was for the defendant alone and not for TCL. It is further the case of the defendant that the plaintiff, who only did approx. 1.07 Lakhs MRC for the defendant alone, failed to even qualify for the super bumper prize. Ld. counsel for defendant argued that the plaintiff did not qualify for the super bumper prize under the Incentive Scheme and as such the plaintiff is not entitled to any relief. It was further argued that the Incentive Scheme nowhere mentions that MRC for both TTSL and TCL will be considered and infact, the Incentive Scheme was launched by TTSL and had nothing to do with TCL. He further argued that TTSL and TCL are distinct entities and the MRC done for TCL did not commercially benefit TTSL and as such, TTSL had nothing to gain from offering the super bumper prize for MRC towards TCL. He further argued that the plaintiff failed to do Rs. 50 Lakhs MRC for TTSL and the plaintiff has been awarded and he availed the prize of a trip to CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 46 of 49 Patiala House Court, New Delhi Mauritius and Rs.50,000/- in 2015-16 itself. He further argued that in any case, as per the express terms of the Incentive Scheme, TTSL was permitted to modify the terms of the Incentive Scheme without any prior notice and TTSL's decision was to be final and the said conditions were understood by the plaintiff and the plaintiff never objected to the same and even no clarifications to this effect were sought by the plaintiff at the start of the scheme period.
79. Perusal of Ex. PW1/8 i.e. email communication exchanged between the parties, shows that there are communications between the son of the plaintiff and the defendant regarding change in terms and conditions of the scheme policy to which the son of the plaintiff had time and again made inquiries from the defendant as to when the said terms and conditions had been changed by the defendant and why MRC for TTL had been considered and in response to the same, the defendant had heavily relied upon the terms and conditions of Fly High Scheme and relevant terms and conditions are reproduced as under: -
"The decision of Company on the said offer shall be final and no queries on the same will be entertained. Program is open for the above terms and may be extended for further such period at the sole discretion of Company.The Program cannot be combined with any other Program or scheme during the above period. Company reserves the right to change the terms and conditions of this Program and to alter or discontinue this offer without prior notice or any part thereof without giving any reason or due notice.The Program participant agrees that they have understood the terms and conditions of the Program."
80. The core question is that whether there had been contract between the parties in such terms, wherein business done for CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 47 of 49 Patiala House Court, New Delhi TCL and TTSL were to be considered cumulatatively, for the purpose of achieving the benchmark for prize in question? The bare perusal of the documents proved by PW1 (which are undisputed documents related to scheme), show that there is no reference to TCL at all in those documents. The scheme was admittedly launched by TTSL. Therefore, it cannot be said that the documents issued by the defendant in respect of scheme, in any manner suggested or indicated that business of both companies would be considered. PW1 heavily relied upon the reference to the sources which were to be looked into for ascertaining the businesses done by the channel partners. However, the given description of sources were stated to be kind of software being used by the companies, in order to get the data. They do not in any manner indicate that business of TCL was also included in the scheme. PW1 also heavily relied upon the scorecard issued by the defendant, wherein his business figures were shown and on the basis of the same, plaintiff was awarded prize of trip to Mauritius and cash award of Rs.50,000/-. PW1 gave example of this scorecard to say that businesses done for both the companies were to be counted. However, in my opinion this scorecard does not constitute any kind of contract between the parties. Such scheme was launched by defendant with apparent purpose to promote the business and to encourage the parties to achieve the benchmarks. If for one category of prize, defendant was benevolent to consider business done for both the companies, that act of the defendant could not have created a new contract and a new obligation on the defendant to continue with same approach in other categories of the Award. To seek CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 48 of 49 Patiala House Court, New Delhi specific performance, there must exist a right in favour of plaintiff arising out of the contract between the parties. When no such right is created by the contract between the parties, then on the basis of one particular action of the defendant, plaintiff does not become entitled to claim same approach to be followed. Any lenient and benevolent approach on the part of defendant, was purely a matter of discretion of the defendant. Hence, I find that there was no such contractual obligation on the defendant to consider business done for the company of TCL as well, in order to decide the successful winner for bonanza prize. In absence of any such obligation upon the defendant, plaintiff cannot be entitled to seek specific performance or to seek any compensation or in alternative any amount from the defendant. Hence, this issue is decided against the plaintiff.
Issue No.4: Whether the plaintiff is entitled for interest, if so, for which period, at what rate and on what amount? OPP
81. In view of decision given on issue no.3, this issue is also decided against the plaintiff.
Issue No.5: Relief, if any.
82. In view of findings and decision given on Issues no.1, 3 and 4, suit is dismissed with cost of the suit in favour of the defendant.
83. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Digitally signed by PULASTYAPULASTYA PRAMACHALA PRAMACHALA Date:
2025.09.02 18:25:37 +0530 Pronounced in the (PULASTYA PRAMACHALA) Open Court on this District Judge (Commercial Court)-01, nd 02 day of September, 2025 Patiala House Court, New Delhi CS (COMM.) 39/2021 (Pulastya Pramachala) District Judge (Commercial Court)-01, Page 49 of 49 Patiala House Court, New Delhi