Delhi District Court
Cs Scj No. 84098/16 vs Bakers Inn Global Pvt. Ltd on 1 April, 2019
IN THE COURT OF SH. SACHIN SANGWAN,
ACJ/CCJ/ARC (SOUTH): DISTRICT COURT SAKET: NEW DELHI.
CS SCJ No. 84098/16
M/s Shri Krishna Enterprises,
Mr. Atul Khera at Partap Bazar,
Near Bhiwani Stand,
Rohtak Haryana.
(Through its sole proprietor)
..... Plaintiff
Versus
1.Bakers Inn Global Pvt. Ltd.
SY No. 176/3, Tadbund Cross Roads, Bowenpally, Secunderabad, 500009, Andhra Pradesh, India.
EMail: [email protected].
Second Address:
Bakers Inn Global Pvt. Ltd. Khasra No. 554/1, C/F Road No.1, Ghitorni, Near Prabha Ki Kothi, New Delhi110030.
2. Mr. M. Vijay Bhaskar Reddy, Managing Director, Bakers Inn Global Pvt. Ltd. (Disney Brands), SY No. 176/3, Tadbund Cross Roads, Bowenpally, Secunderabad, 500009, Andhra Pradesh, India.
EMail: [email protected]. ..... Defendants SUIT FOR RECOVERY OF A SUM OF RS.2,65,905/ (RUPEES TWO LAKHS SIXTY FIVE THOUSAND NINE HUNDRED FIVE ONLY) Date of Institution : 23.11.2015 Date of reserving judgment : 13.02.2019 Date of Decision : 01.04.2019 CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 1/13 EX PARTE JUDGMENT CASE OF THE PLAINTIFF
1. The plaintiff is a proprietorship concern being run by sole proprietor Sh. Atul Khera. The defendant no.1 is a private company and the defendant no.2 is the director thereof who had been instrumental in transactions in question.
2. The plaintiff concern was appointed as the super stockist of the manufactured goods of defendants as per the channel partner common application form supplied by defendant company. As per mutual understanding between the parties the defendant no.1 was to supply goods to plaintiff concern for stocking, on payment of advance money. The plaintiff carried out two transactions by making advance payment in the account of defendant no.1. Amount of Rs. 51,000/ and Rs. 1.5 lakhs were credited from the plaintiff's account to the defendant no.1's account as advance payment on 14.02.2014 and 26.02.2014 respectively for supply of the goods. A consignment of goods amounting Rs. 1,99,826.36 was delivered to the plaintiff from the New Delhi office of the defendant. Another advance payment of Rs. 1,00,000/ was given by the plaintiff to the defendant no. 1 on 14.03.2014 for supply of the goods for stocking.
3. As per the instructions and with concurrence of defendant no. 1, the expired goods amounting to Rs. 99,355.79 were destroyed on CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 2/13 23.06.2014 by Sh. Gaurav Tiwari a Sales Officer of defendant no. 1. Same was duly acknowledged by defendant no.1 vide destruction certificate dated 23.06.2014. A copy of the same was provided to the plaintiff by the Sales Officer of defendant no. 1. Even the photographs regarding the destruction were taken by the plaintiff.
4. A CST claim notice dated 23.06.2014 was also furnished by plaintiff to the defendant no. 1 for issuing credit note of Rs. 3,918.16 for the bill dated 03.03.2014 which was duly accepted and verified by Mr. Gaurav Tiwari, the sales officer of defendant no. 1.
5. As per plaintiff there was no proper staff for marketing and due to lower demand and substandard quality of the goods supplied by the defendant no. 1 same kept lying unsold with the plaintiff. Accordingly, plaintiff wished to discontinue the products and asked the defendant to make full and final settlement of their account. As per plaintiff after considering the advance payments, the value of goods received and the CST claims an amount of Rs. 204447.69 alongwith interest @ 18 % is payable by the defendants to the plaintiff.
6. As per plaintiff the defendant company in their Email dated 30.08.2014 and another Email dated 17.09.2014 sent by the sale marketing head of defendant company stated that the entire outstanding dues shall be cleared by 10.10.2014. Another mail dated 12.02.2015 was sent by supply chain partner Sh. Arshad Parvej which enclosed another mail dated 10.02.2015 of defendant no. 2 CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 3/13 stating that outstanding dues shall be cleared withing 3545 days. As per plaintiff the defendant no. 2 being the Manging Director of the defendant no.1 company and being incharge of affairs of company is equally liable to plaintiff for the money due to plaintiff.
7. As per plaintiff even a legal notice 23.07.2015 was sent to the defendant through post and the defendant sent reply dated 04.08.2015 denying the liability and contended that the matter shall be referred to arbitrator in view of some arbitration clause. The plaintiff sent rejoinder to the defendant on 15.09.2015 asking the defendant to supply the statement of account but neither such statement nor any arbitration agreement has been received by the plaintiff. Accordingly, the present suit was filed by the plaintiff seeking recovery of Rs. 2,65,905/ alongwith interest @ 18 % per annum.
WRITTEN STATEMENT OF DEFENDANTS
8. As per defendants the present court do not have jurisdiction to entertain the suit as the principal office of the defendant is at Hyderabad and the plaintiff's office is based at Rohtak, Haryana and the business transaction was aimed at sale in Haryana. Further the transactions took place at Rohtak or at Hyderabad.
9. As per defendants the plaintiff entered into oral understanding with them to act and perform as distributor / agent of defendant no. 1 company for sale and distribution of its bakery products in various CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 4/13 districts of Haryana. It was agreed that defendant no. 1 will give monthly remuneration to the plaintiff depending upon the performance of the business. On consonance of this understanding the plaintiff through its proprietor submitted a channel partner common application form as per requisites. The said form clearly bears the address of the channel partner as that of Rohtak Haryana and geographical reach of the business is also mentioned to be within Haryana.
10. The plaintiff, as per agreed terms and conditions, on 13.02.2014 made advance payment of Rs. 51,000/ through NEFT for products to be supplied by defendant no.1. Further on 26.02.2014 the plaintiff made another NEFT transfer of Rs. 1.5 lakh to defendant as registration charges to BakersInn/Disney, payable as per mutual understanding between the parties.
11. Accordingly, the defendants supplied the first consignment of bakery products valuing Rs. 1,99,826.26 to plaintiff on 03.03.2014 and the value was deducted out of consideration paid on 13.02.2014. In lieu of bakery products for supply and received by plaintiff on 03.03.2014, the plaintiff made payment of Rs. 1,00,000/ on 14.03.2014 through NEFT.
12. The plaintiff despite being in arrears issued legal notice dated 23.07.2015 due to malafide intention. The plaintiff despite being aware that the premises at Ghitorni New Delhi was not the official address of defendant or even subordinate office issued the notice at CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 5/13 the same besides at the head office at Hyderabad. The plaintiff was aware that Ghitorni premises is only a stopover due to delicate nature of products supplied by defendants. The bakery products are being manufactured at Hyderabad only and a rent agreement of factory premises of defendant no. 1 company at Secundrabad is of year 2013. The defendants send a common reply but the plaintiff again issued notice dated 15.09.2015 raising false claims.
13. The defendants admitted plaintiff as its authorized super stockist / distributor but denied that as per the instructions and concurrence of defendant no. 1 or its authorized representative the expired goods valuing Rs. 99,355.79 were destroyed on 23.06.2014 by one Mr. Gaurav Tiwari the sale officer of defendant no. 1. As per defendants the defendant company was never informed about expiration or destruction of the goods by the plaintiff or by said Gaurav Tiwari. The destruction certificate filed by the plaintiff is illegible and it is denied that original of the same is with defendant. As per defendants Mr. Gaurav Tiwari was only sales officer and was not authorized to either supervise or take action on behalf of defendants regarding of destruction of expired goods. It is denied that defendant no. 1 was supposed to provide marketing staff. As per defendants it was plaintiff's responsibility to market and sell the products whereas defendant were merely responsible for manufacture and supply of products. It is denied that defendants supplied substandard quality of goods to the plaintiff. The averments regarding Email communication dated 30.07.2014 and 17.09.2014 are denied. In regard to Email communication dated CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 6/13 10.02.2015 addressed by defendant no.1 it is submitted that same was only an internal Email for the employees of defendant no.1 all over India and there is no specific mention of plaintiff concern. Mr. Arshed Parvej who allegedly enclosed the Email dated 10.02.2015 alongwith with his Email dated 12.02.2015 addressed to plaintiff was not authorized or directed to do.
14. On the basis of aforesaid pleadings following issues were farmed:
1. Whether the plaintiff is entitled to the Decree in the sum of Rs. 2,65,905/ on the basis of plaint allegation, as prayed for? OPP
2. Whether the plaintiff is entitled to interest upon the said amount? If yes, for what period and at what rate? OPP
3. Whether this court has no territorial jurisdiction to try the present suit? OPD
4. Whether the plaintiff has no cause of action to file the present suit? OPD
5. Relief.
PLAINTIFF EVIDENCE
15. The proprietor of the plaintiff concern examined himself as PW1. He filed his evidence by way of affidavit Ex. PW1/A and relied upon the following documents: Mark PW 1/1 is the copy of channel partner application form. Ex.PW 1/2 is the account statement in regard to payment of Rs. 51,000/ and Rs. 1.5 lakhs.
CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 7/13 Ex.PW1/3 is the sale invoice no. CST/1314/09 dated 03.03.2014. Ex.PW1/4 is the invoice of the vehicle delivering aforesaid goods. Ex.PW1/5 is the account statement in regard to transaction of Rs. 1,00,000/ on 14.03.2014.
Mark PW1/6 is the copy of destruction certificate. Ex.PW1/7 (Colly) photographs showing destruction of goods. Mark PW1/8 is the CST claim notice dated 23.06.2014. Ex.PW1/9 and Ex. PW 1/10 are the Emails dated 30.08.2014 and 17.09.2014.
Ex. PW 1/11 is the email dated 12.02.2015 enclosing another email dated 10.12.2015.
Ex. PW 1/12 is the copy of legal notice dated 23.07.2015. Ex. PW 1/13 (Colly) are the postal receipts regarding said notice. Ex. PW 1/14 is the reply of defendant dated 04.08.2015. Ex. PW 1/15 (Colly) is the rejoinder dated 15.09.2015. Ex. PW 1/16 (Colly) are the postal receipts regarding said rejoinder.
PW1 was crossexamined in detail on 07.10.2017 but counsel for defendant sought adjournment for further cross examination with the assistance of AR of defendant who was not available. Subsequently, matter was adjourned number of times but defendant failed to crossexamine PW1 and the opportunity for the same was closed vide court orders dated 11.07.2018. The PE was closed by the plaintiff on the same date.
DEFENDANTS EVIDENCE
16. Defendants failed to lead any evidence despited opportunities CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 8/13 and hence DE was closed through court orders on 23.01.2019.
17. Arguments of the plaintiff were heard and defendants failed to enter appearance for arguments also.
FINDINGS: ISSUE NO.1: Whether the plaintiff is entitled to the Decree in the sum of Rs. 2,65,905/ on the basis of plaint allegation, as prayed for? OPP
18. The plaintiff has corroborated his case with documentary evidence and even otherwise the payments made by the plaintiff have not been disputed by the defendants in the WS. The specific defences of defendants were that Rs. 1.5 lakh payment was made by plaintiff towards registration charges. However, no evidence has been led by the defendants in support of said claim. Even no written document has been filed by the defendants alongwith pleadings in regard to said amount being towards registration charges. Further the copy of channel partner common application form filed by plaintiff has not been disputed by the defendant and the same is specifically for super stockist and does not contain any condition regarding deposit of any registration charges. Moreover, as per defendant the payment of Rs. 50,000/ was towards products to be supplied by the defendants. However, the said payment was admittedly made on 13.02.2014. Therefore, if the plaintiff was required to deposit the registration charges then the payment toward said charges should have been first payment made to the defendants CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 9/13 as the business could be transacted between them only when plaintiff was officially registered on deposit of such charges. Therefore, apparently the said plea itself is false. Moreover, in the reply Ex. PW 1/14 there is not even a whisper of amount of Rs. 1.5 lakh as registration charges whereas the plaintiff has raised his claim in the legal notice in the same manner as mentioned in the present plaint. As far as the destruction of expired goods is concerned the plaintiff has filed the photographs regarding the same and has proved the copy of destruction certificate and has deposed on oath that original of the same is with the defendant. Nothing has come in the cross examination of plaintiff to doubt the same. On the other hand the defendant has failed to lead any evidence on the issue and have not even denied in the pleadings that the alleged Gaurav Tiwari who had allegedly signed on the destruction certificate was not the employee of the defendant. Therefore, the onus was on the defendant to examine their employee and disprove the said destruction certificate. Likewise the plaintiff has deposed on oath qua the CST claim which was received by the aforesaid Gaurav Tiwari. Further, the plaintiff has proved the Emails Ex. PW 1/9 and Ex. PW 1/10 wherein Mr. Zaheer Abbas has written that the dues shall be cleared within 10 days / latest by 10.10.2014 respectively. Said Emails are of 30.08.2014 and 17.09.2014 respectively and the receiver Email address is the same as mentioned in the channel partner common application form Mark PW 1/1. Moreover, the designation / legal capacity of Mr. Zaheer Abbas is not disputed by the defendant. Accordingly, the existence of outstanding dues towards plaintiff payable by defendant is admitted in the said Emails.
CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 10/13 Therefore, the plaintiff has proved the outstanding dues of Rs. 2,04,447.69 to be payable by defendant no. 1 company to the plaintiff. The issue no. 1 is accordingly decided in favour of plaintiff.
ISSUE NO. 2 Whether the plaintiff is entitled to interest upon the said amount? If yes, for what period and at what rate? OPP
19. The plaintiff has claimed interest @ 18 % per annum from the defendants on the suit amount. No specific date in regard to accrual of interest is mentioned nor any document have been filed whereby any rate of interest was agreed upon. However, considering that the nature of transaction was a business transaction, the plaintiff shall be entitled to some interest on the principal amount. In view of the interest rates of the nationalized banks it will be apposite that plaintiff is awarded interest @ 9 % per annum. Further, considering the raising of demand by way of legal notice the plaintiff shall be entitled to the interest since the date of the legal notice i.e. 23.07.2015. The issue is accordingly, is decided in favour of plaintiff.
ISSUE NO. 3 Whether this court has no territorial jurisdiction to try the present suit? OPD
20. In regard to objections regarding territorial jurisdiction it is noticed that the plaintiff has proved the invoice Ex. PW 1/3. Issuance of the same by defendant have not been disputed in the WS or in the crossexamination of PW1. Perusal of the same shows that the CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 11/13 defendant no.1 has mentioned its address as that of Ghitorni, New Delhi alongwith specific TIN number and more importantly in the terms and conditions it is mentioned "subject to Delhi's jurisdiction only". Accordingly, the defendant cannot plead otherwise when it has already declared the jurisdiction of Delhi Courts. Accordingly, this issue is decided in favour of plaintiff and against the defendant.
ISSUE NO. 4 Whether the plaintiff has no cause of action to file the present suit? OPD
21. In view of findings of issue no.1 this issue is decided in favour of plaintiff and against the defendants.
RELIEF
22. The plaintiff has demanded recovery against both the defendants, however, admittedly the channel partner form was filled qua defendant no. 1 and all the payments were made in the account of defendant no. 1; and defendant no. 2 is only a director in the defendant no.1 company. However, being the director or even Managing Director or being incharge of day to day affairs of defendant no. 1 company shall not make him liable personally towards the civil liabilities of defendant no.1 company. Accordingly, plaintiff is entitled to relief only against defendant no.1. Hence, suit is decreed against defendant no. 1 and it is held liable to pay Rs. 2,04,447.69 to the plaintiff alongwith interest @ 9% since 23.07.2015 till realization.
CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 12/13 Decree sheet be prepared accordingly.
File be consigned to record room after due
compliance.
Digitally signed by
Pronounced in Open Court SACHIN
SANGWAN
SACHIN SANGWAN
Date: 2019.04.02
Today, this 01th April, 2019
15:48:07 +0530
(Sachin Sangwan)
ACJ/CCJ/ARC (South):
District Court Saket:
New Delhi
CS No. 84098/16 Krishna Enterprises v. Bakers Inn Global Pvt. Ltd. Pages 13/13