Delhi District Court
M/S Shyam Spectra Pvt. Ltd vs M/S Humanitics Dimensions Software ... on 5 March, 2022
IN THE COURT OF SENIOR CIVIL JUDGE-CUM-RENT
CONTROLLER, SOUTH-EAST DISTRICT,
SAKET COURTS, DELHI
Presided By : Ms. Manisha Khurana Kakkar, DJS
Civil Suit No. 234/19
M/S SHYAM SPECTRA PVT. LTD.
Through its authorized representative
Having its Office at:-
Plot no. 258, Okhla Industrial Estate,
Phase-III, New Delhi-110020. ... Plaintiff
Versus
M/S HUMANITICS DIMENSIONS SOFTWARE PRIVATE
LIMITED
Plot No.293, 4th floor, Kehar Singh Estate,
Westend Marg, Saidulajab, Lane No.2,
Saket, New Delhi-110030. ... Defendant
SUIT FOR RECOVERY OF RS. 95,128.33/-
ALONGWITH COSTS, PENDENTE-LITE AND
FUTURE INTEREST.
DATE OF INSTITUTION : 06.02.2019
DATE OF ARGUMENTS : 02.03.2022
DATE OF DECISION : 05.03.2022
JUDGMENT
1. The plaintiff is a Company incorporated under the Companies Act, 1956 and is having its registered office at A-60, Naraina Industrial Area, Phase-I, New Delhi-110028 and operations office at Plot no. 258, Okhla Industrial Estate Phase-III, New Delhi-110020. It is further stated that the plaintiff company was formerly known by the name of "Citycom Networks Private Limited" and has changed its name to "M/s Shyam Civil Suit No. 234/19 M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.1 of 9 Spectra Private Limited".
2. The plaintiff has inter-alia pleaded in the plaint that Mr. Prafulla Rocky is the authorized representative of the Plaintiff Company and is duly authorized to institute and pursue the present suit by virtue of the Board Resolution dated 21.08.2018. It is stated that the plaintiff company is a Telecom Service Provider. As per the plaintiff, defendant approached the plaintiff company for availing internet /broadband services for 24-hour high-speed inter-net access/connectivity and accordingly a Purchase Order (PO) dated 30.04.2018 and Customer Agreement Form dated 30.04.2018 were executed setting out the terms & conditions for providing the services and the plaintiff agreed to provide Internet services to the defendant. It is further stated that in order to provide the said services to the defendant, plaintiff had set up and installed Customer Premises Equipment (CPE) at the designated installation address of defendant and had incurred expenses to the tune of Rs. 15,000/- for the same. Thereafter, an account no. 9070679 was allotted to the defendant for providing the services and the plaintiff started providing the services to the defendant from 19.05.2018. It is further stated that the plaintiff company continued to provide the Internet services to the defendant through its Network Operation Centre (NOC)/operations office situated at Okhla, New Delhi till the time the defendant's account was deactivated due to non-payment of service charges by the defendant. It is stated that in terms of agreement, all payments were to be made at New Delhi and any late payment was to attract interest @ 18% on the due amount. It is stated that the plaintiff had raised invoices against Account Number 9070679 regularly from the date of activation for the services, however, the defendant persistently defaulted in making payments against the invoices raised by the plaintiff for the Civil Suit No. 234/19 M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.2 of 9 services availed by it.
3. It is further stated that since the defendant did not make payment against the services used by the defendant, the plaintiff was constrained to deactivate /disconnect the services provided by it to the defendant on 22.11.2018 and the plaintiff raised last invoice reflecting the entire balance outstanding on account of service charges, bearing invoice No. DL/18-19/009169, dated 26.11.2018 for account No. 9070679. It is further stated that as per Customer Agreement Form (CAF), under the heading "CUSTOMER DECLARATION" clause "Contract Period" the defendant was under a contractual obligation to avail the services of the plaintiff for a minimum period of One Year from the date of activation failing which the defendant was made liable to pay charges for the remaining period of One Year. It is further stated that the defendant's account/link was activated on 19.05.2018 and was deactivated by the plaintiff on 22.11.2018 before the expiration of the lock-in-period. It is, thus, claimed that the defendant became liable to pay a sum of Rs. 73,244.86/- to the plaintiff.
4. It is further stated that after the deactivation of the defendant's account/link, the defendant neither returned the said equipment nor paid the cost of the same. Thereafter, the plaintiff served a legal notice dated 19.12.2018 through speed post, calling upon the defendant to pay a total sum of Rs. 95,128.33/- (including the outstanding charges of Rs.6,883.47/-, installation charges/cost of unreturned CPE i.e. Rs.15,000/-, Rs.73,244.86/- i.e., charges for breach of lock-in period). However, the defendant failed to clear the outstanding dues. Hence, the present suit.
Defendant's Case:
Civil Suit No. 234/19M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.3 of 9
5. In the WS filed on behalf of defendant, it is stated that the plaintiff has not approached this Court with bonafide intents. It is further stated that the defendant is a company duly incorporated under the provisions of the Companies Act, 1956 and is into the business of software development across the globe. Defendant company states that it is engaged in product development and deals in technical staffing areas in web, mobility, analytics and portal development and support and defendant provides all the said services with an aid of internet, which should have bandwidth of 1:1, that is the downloading and uploading speed should be the same.
6. It is stated that the representative of plaintiff had approached the defendant and had claimed itself to be the best internet/broadband service provider and had also assured that the services shall be provided to the satisfaction of defendant and hence, upon believing the assurances of representative of the plaintiff, defendant issued the purchase order dated 30.04.2018 to the plaintiff for Business Internet Access.
7. Defendant further states that in the said purchase order, it was categorically stated that in case the defendant is not satisfied with the services of plaintiff or in case of SLA breakdown, the said purchase order can be terminated by giving one month notice to the plaintiff. The relevant clause is quoted hereunder:
"Exit Clause: if service are not satisfactory or SLA breakdown. It can be terminated at any point of time by giving one month notice period".
8. Defendant states that it was not satisfied with the services of the plaintiff and the same was communicated by the representatives of the defendant vide several e-mails dated 20.09.2018, 03.10.2018, 15.10.2018 and several telephonic conversations. Defendant claims that despite Civil Suit No. 234/19 M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.4 of 9 repeated requests, plaintiff miserably failed to provide the services as assured and defendant vide its e-mail dated 23.10.2018, had duly communicated it's intention of terminating the services of the plaintiff. Defendant claims that plaintiff had duly accepted the termination and directed the plaintiff to serve one month's notice as per Exit clause of the purchase order. It is further stated that Mr. Ravi Chandna, one of the representatives of the plaintiff company, vide its e-mail dated 23.10.2018 had informed and admitted that the defendant had requested for the termination of the services vide e-mail dated 23.10.2018 and accordingly the service were to be deactivated on 22.11.2018. Defendant claims that he had already made the payment towards the said services till 07.11.2018, and had requested the plaintiff to deactivate the service on 07.11.2018. It is, however, stated that the representative of the plaintiff informed that since one month notice was necessary, therefore, services could only be deactivated on 22.11.2018. Defendant states that the defendant, left with no other option, continued with the services of the plaintiff under distress till 22.11.2018. Furthermore, it is stated that the representative of the defendant vide its e-mail dated 20.12.2018, requested the plaintiff to collect its device or hardware from its office. Defendant claims that the plaintiff, after termination of the services, had collected the said device from the defendant and the same was duly acknowledged by the plaintiff vide e-mail dated 07.01.2019. It is further stated that despite receipt of said device, plaintiff has claimed Rs. 15,000/- towards the said device. Defendant further states that he is willing to make the payment towards the outstanding amount of Rs. 6,883/-. It is, therefore, prayed that the suit of the plaintiff be dismissed.
Issues:-
Civil Suit No. 234/19M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.5 of 9
9. On the basis of pleadings of the parties, the following issue was framed by Ld. Predecessor vide order dated 30.07.2019:-
1. Whether the plaintiff is entitled to recovery of Rs.
95,128.33/- from the defendant along with pendente lite and future interest, as prayed for? OPP.
10. In order to prove its case, Sh. Prafulla Rocky, AR of plaintiff company was examined as PW1. In his examination-in-chief, he mostly reiterated the averments made in the plaint and he relied upon the following documents:
i. Certificate of incorporation i.e. Ex. PW1/A; ii. Copy of board resolution dated 21.08.2018 i.e. Ex. PW1/B (OSR);
iii. Purchase order dated 30.04.2018 i.e. Ex. PW1/C; iv. CAF dated 30.04.2018 i.e. Ex. PW1/D;
v. office copy of all the invoices generated by plaintiff i.e. Ex. PW1/E (colly);
vi. statement of account along with certificate under Section 65B of Indian Evidence Act i.e. Ex. PW1/F(colly);
vii. Office copy of legal notice dated 19.12.2018 i.e. Ex. PW1/G; and viii. Original postal receipt of dispatch i.e. Ex. PW1/H.
11. After examination-in-chief of PW1/AR of plaintiff, none appeared on behalf of defendant and defendant also failed to cross examine PW1. Hence, defendant was proceeded ex-parte vide order dated 06.10.2021 and the matter was listed for ex-parte final arguments.
12. I have heard Counsel for the plaintiff. During the final arguments addressed by the Ld. Advocate for the plaintiff company had submitted that the case of the plaintiff company stands duly proved by virtue of unchallenged testimony of PW1 Sh. Prafulla Rocky and as such, Civil Suit No. 234/19 M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.6 of 9 the plaintiff should be granted the decree, as prayed for.
13. In order to prove its case, the plaintiff has relied upon the unchallenged testimony of PW1 Sh. Prafulla Rocky, inter-alia supported by the evidence by way of affidavit, Ex.PW1/1, Certificate of Incorporation along with certificate under section 65B of Indian Evidence Act, Ex.PW1/A (colly), copy of board resolution Ex.PW1/B (OSR), original purchase order dated 30.04.2018 Ex. PW1/C, original CAF dated 30.04.2018 Ex.PW1/D, invoice no.DL/18-19/002729 dated 08.06.2018, Ex. PW1/E(colly), statement of account along with certificate under section 65B of Indian Evidence Act, Ex. PW1/F (colly), legal notice dated 19.12.2018 along with original postal receipt, Ex. PW1/G and Ex.PW1/H respectively.
14. Perusal of the record shows that the present suit has been filed within the prescribed period of limitation by the plaintiff. As per the plaintiff, the account of defendant was deactivated on 22.11.2018 and the present suit was filed on 06.02.2019 i.e. within the period of three years from 22.11.2018.
15. Furthermore, this Court has territorial jurisdiction to entertain this suit as the plaintiff has its registered office at Okhla Industrial Area which is located within territorial jurisdiction of this Court, from where, the internet services were provided by the plaintiff to the defendant.
16. The defendant has not appeared to contest the present suit and the testimony of PW1 Prafulla Rocky has remained uncontroverted and unrebutted. It is a matter of record that defendant has not led any evidence to prove it's defence that the services provided by the plaintiff were not satisfactory. In fact, in the W.S., defendant has admitted it's liability to pay the amount of Rs. 6883.47/- for the services provided by the plaintiff Civil Suit No. 234/19 M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.7 of 9 company.
17. As per the testimony of PW1, the plaintiff is entitled to recover a sum of Rs.15,000/- towards the equipment installed at the customer premises which was neither returned by the defendant nor it's cost had been paid by the defendant. In the WS, defendant had admitted that the said equipment was installed at it's premises. Defendant had taken the defence that it had sent an e-mail to the plaintiff to collect the said equipment and that plaintiff had collected the said device. However, as already stated, defendant had failed to appear and to lead any evidence to prove that the said device was handed over to the officials of plaintiff. Thus, it appears that defendant is in possession of the equipment. No such averment was made by the defendant that it had paid any amount towards the cost of said equipment. Thus, defendant is liable to pay the cost of equipment as claimed.
18. The plaintiff has also claimed that apart from outstanding service charges of Rs.6,883.47/- and installation charges of Rs. 15,000/-, the plaintiff is entitled to recover outstanding charges towards the remaining service period i.e. Rs.73,244.86/-. However, the said charges of Rs.73,244.86/- which are levied by the plaintiff on the defendant towards the lock in period for the remaining one year, despite deactivation of the account of the plaintiff, appear to be exorbitant and unwarranted. Therefore, the plaintiff is entitled to recover the balance amount due as mentioned in the ledger account i.e. Rs. 6,883/- (rounded off) as well as equipment installation charges of Rs.15,000/-.
19. In respect of the quantum of interest claimed by the plaintiff, plaintiff has sought the relief of pendente-lite and future interest at the rate of 18% per annum. In my view, the claim of the plaintiff qua the said Civil Suit No. 234/19 M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.8 of 9 interest is excessive and in the facts and circumstances of this suit, the ends of justice would be met, if the plaintiff is granted pendente-lite and future interest at the rate of 9% per annum.
20. Thus, as a net result of the aforesaid, this suit is decreed in favour of the plaintiff and against the defendant, for a sum of Rs. 15,000/- (towards the equipment installation) as well as a sum of Rs.6,883/- (rounded off) towards outstanding service charges alongwith pendente lite and future interest at the rate of 9% per annum. No order as to costs.
21. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
MANISHA Digitally signed by MANISHA
KHURANA KAKKAR
KHURANA Date: 2022.04.04 15:10:49
KAKKAR +0530
Announced in open Court (Manisha Khurana Kakkar)
today on 05.03.2022 Senior Civil Judge cum Rent Controller
South-East, Saket Courts, New Delhi
Civil Suit No. 234/19
M/S SHYAM SPECTRA PVT. LTD. vs. M/S HUMANITICS DIMENSIONS SOFTWARE PVT. LTD. Page no.9 of 9