Delhi District Court
In Re vs M/S Cat Vision Products Ltd on 19 March, 2016
THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT & SESSIONS
JUDGE13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
SUIT NO. 21/2016
In re :
Cable Vision Network
A133, Defense colony,
New Delhi - 110024. ...............Plaintiff
Versus
M/s Cat Vision Products Ltd.
E14 & 15, Sector8
Noida, U.P. ...........Defendant
AND
In re :
SUIT No. 265/2016
M/s Cat Vision Products Ltd.
E14 & 15, Sector8
Noida, U.P. ..........CounterClaimant/Defendant
Versus
Cable Vision Network
A133, Defense colony,
New Delhi - 110 024. ..................Defendant in CC/Plaintiff
Date of institution of present suit : 06.12.2004
Date of filing of Counter Claim : 13.04.2005
Date of receiving in this court : 29.01.2016
Date of hearing arguments : 20.02.2016/26.02.2016
Date of Judgment : 19.03.2016
JUDGMENT :
This common judgment shall dispose of the suit filed by Plaintiff and Counter Claim filed by Defendant. The plaintiff has filed Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 1/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network the present suit against the defendant praying therein to pass a decree in its favour and against the Defendant directing the defendant to refund with interest @ 24% p.a. sum of Rs. 8 which it had paid as an advance for purchase of Head End System from Defendant as Defendant failed to supply the same; whereas Defendant has filed counter claim for recovery of Rs 10,22,977/ as loss/price/damages which Defendant/counter claimant has to suffer due to nonreceipt of Head End System and unilateral cancellation of contract by Plaintiff.
1. For the purpose of convenience, parties are referred to in this judgment by their original status. Thus, the word "Plaintiff" means Plaintiff of the main suit and respondent/defendant of the Counter Claim and the word "Defendant" means Defendant of the main suit and counter claimant of the counter claim.
2. The brief facts necessary for the disposal of the present case are that the plaintiff is a partnership firm and is in the business of Cable network and providing Cable Network in South Delhi area. Shri Harjit Singh is the partner of the firm and therefore, duly competent to file the present suit. The plaintiff has annexed the certified copy of the registration certificate of the firm along with the plaint. It is averred by the plaintiff that the d main efendant is a company which is in the business of selling Set top Box and Head End System to various companies. The defendant claims themselves to be the Franchises of Dalvi Products, a British Company.
3. It is further averred by the plaintiff that the Government of Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 2/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network India launched a CAS system, whereby it was mandatory that the subscribers of the Cable services has to install a Set top Box at the main residence of the subscriber and the Cable Service provider has to install a Head End equipment at their office to supply the various channels to their subscribers. Accordingly, the plaintiff has to supply the said Set Top Boxes to its various subscribers and also have to install Head End equipments at their office.
4. It is further averred that the defendant approached the plaintiff for the supply of the same. After some negotiations, the defendant submitted its offer dated 05.03.2003 for supply of Dalvi CAS Head End system and the said order was containing the terms and conditions. As per plaintiff, though the said offer is dated 05.05.2003 the same was accepted by it on 09.05.2003 and in terms of the said agreement, the plaintiff has made the advance payment of Rs. 8 lakh vide cheque no. 840171 dated 03.05.2003. It is stated by the plaintiff that the delivery schedule was within eight weeks from the date of the advance payment. The plaintiff has made the payment in advance because the Government of India has directed all the Cable Operator to implement CAS system by 15.07.2003 therefore, the delivery has to th be made in any case by the defendant prior to 15 of July, 2003. However, the defendant failed to make the delivery by that date. The Government of India extended the date of implementation of the CAS system till 01.09.2003 but the defendant failed to supply the Head End System/equipments, therefore, the plaintiff was having no other option Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 3/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network except to cancel the contract with the defendant. Accordingly, the plaintiff wrote letters dated 07.07.2003 and 24.09.2003 asking therein for refund of the entire amount paid to the defendant to which the defendant agreed subject to condition that the plaintiff do not claim any compensation/damages from the defendant. The defendant agreed to pay the said amount by the end of September, 2003.
5. It is further averred by the plaintiff that on 23.09.2003, it received a letter dated 08.09.2003 written by the defendant mentioning therein that the said Dalvi Conditional Access System, Head End System was lying with them for last three months and that the plaintiff is not collecting the material. The plaintiff immediately wrote a registered letter dated 24.09.2003 mentioning therein that in pursuance to the agreement dated 05.05.2003, the plaintiff has paid Rs. 8 lakh as an advance to make sure the delivery of CAS equipments in time but despite various reminders of the plaintiff, the defendant failed to deliver the same by 14.07.2004 which has lost its relevance and not required any longer by the plaintiff. It was further mentioned in the said letter that as the defendant failed to make the delivery within stipulated time, therefore, the plaint main iff has no other option but to cancel the agreement and on the request of the defendant it has also undertaken not to claim any damages/compensation from the defendant. The plaintiff has therefore called upon the defendant to pay the entire amount of Rs. 8 lakh within seven days from the receipt of the said letter. As per plaintiff the defendant has received the said letter on Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 4/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network 26.09.2003 according to acknowledgment received back by the plaintiff. It is further averred by the plaintiff that despite several reminders, the defendant failed to pay the amount of Rs. 8 lakh to the plaintiff. Hence, this suit.
6. The defendant was duly served and filed written statement cum counter claim denying the allegations as raised by the plaintiff in the plaint and claimed a sum of Rs. 10,22,977/ with interest @18% p.a. as loss/cost o main f amount incurred in procuring the goods as asked by the Plaintiff and which Plaintiff refused to take.
7. In the written statement cum counter claim, the defendant has taken several preliminary objections interalia : that this Court has no jurisdiction to entertain and try this suit because the defendant has its office in Noida, UP and therefore does not fall under the jurisdiction of this Court; that the suit is barred by limitation; that the suit has not been properly valued for the purposes of Court fees and jurisdiction; that there is absolutely no cause of action in favour of the plaintiff and against the defendant as there was no contract between the parties; that there was no consideration and an agreement without a consideration is not a valid contract and is therefore not enforceable before any Court of law. The offer was extended on 05.05.2003 and it was accepted on 09.05.2003 and payment made on 03.05.2003 is not a consideration for the agreement dated 09.05.2003; that the defendant is the aggrieved party because of nonperformance on the part of the plaintiff and has incurred huge loss; that the plaintiff has Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 5/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network tried to mislead the Court by supplying wrong details and also by withholding the important materials which is very much important for the just decision of the case and that the present suit is false and frivolous and has been filed with the ulterior motive and malafide intention to harass the defendant.
8. In reply on merits, the defendant has stated that Shri Harjit Singh is not a partner of the said firm, therefore, he is not competent to file the present suit. It is stated by the defendant that the defendant offered vide its offer dated 05.05.2003 for supply of Dalvi CAS Head End System to the plaintiff. Said offer was accepted by the plaintiff on 09.05.2003 and on the same day, the plaintiff ordered for the supply of Dalvi Head End System. However, as per payment term of the said agreement, 25% of total ordered value was not paid with the order to the defendant. The plaintiff promised to pay the advance amount shortly and asked the defendant to proceed with their purchase order placed with its supplier Dalvi Technology Ltd. UK and the defendant having faith in their promise placed the purchase orders with Dalvi Technology Ltd and paid the advance amount for the supply of the said system from its own account.
9. It is further stated by the defendant that the plaintiff did not make the payment of 25% of total order value while placing the order nor Rs. 8 lakh was paid advance. The defendant had business relations with the plaintiff and on previous occasion also had supplied them goods/equipments used in the Cable Network and the payment Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 6/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network of Rs. 8 lakh vide cheque no. 840171 dated 03.05.2003 to the defendant was paid by the plaintiff for the goods/equipments supplied by the defendant previously and not in consideration for the agreement dated 09.05.2003.
10. It is further submitted by the defendant that since no payment was made by the plaintiff to it in terms of the said agreement while placing order, therefore, it was not bound to perform its part as the said agreement was breached first by the plaintiff itself. In spite of the fact that the defendant did not receive any advance payment from the plaintiff, the defendant went ahead to perform its part of the contract by placing the purchase order with Dalvi Technology Ltd for the supply of the equipments and it had received the delivery of the said equipments from UK on 06.07.2003 and accordingly informed Plaintiff vide letter dt 6.07.2003 about the receipt of the equipments and asked them to make the entire payment and make arrangement to take the delivery of the goods/equipments urgently. The equipments were ready for delivery before 15.07.2003 but the plaintiff did not make any arrangement either to make the entire payment or to take the delivery of the equipments and therefore there was no fault on the part of the defendant in performance of the terms of the agreement.
11. It is further pleaded by the defendant that through various letters dated 12.05.2003; 25.05.2003, 06.07.2003; 08.09.2003 and 29.09.2003 and through many telephonic conversations had always asked the plaintiff to make the payment and take the delivery of Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 7/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network equipments but the plaintiff did not do so.
12. It is further pleaded that since Defendant had made the entire payments for the import of the said equipments and thereby had incurred cost/loss for the equipment which Defendant is entitled to recover form Plaintiff, hence, the counter claim for recovery of Rs 10,22,977/ with interest @ 18% p.a.
13. Subsequently, replication and written statement to counter claim was filed on behalf of the plaintiff denying the submissions made by the defendant in its written statement cum counter claim and reiterating the averments as made in the plaint putting blame on the Defendant.
14. Vide order dated 24.01.2006, Ld. Predecessor of this court framed the following issues :
1. Whether this court has no territorial jurisdiction to entertain the suit? OPD
2. Whether the agreement dated 09.05.2003 is an enforceable agreement between the parties?
3. Whether the defendant/plaintiff in the counter claim suffered losses on account of revoking of the contract by the plaintiff/defendant in the counter claim vide letter dated 24.09.03?
4.Whether the defendant/plaintiff in the counter claim suffered the total lended cost of Rs. 10.22.977/? OPD
5.Relief
15. In support of its case plaintiff examined Sh. Harjeet Singh, Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 8/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network partner of the plaintiff company as PW1, who tendered his examinationinchief by way of affidavit Ex. PW1/A reiterating the averments of the plaint. He was duly crossexamined by the ld. Counsel for the defendant.
16. On the other hand, in support of its case defendant examined DW1 Sh. Rajesh Kukreja, DW2 Mrs. Radha Bhalla, Superindent (Customs), DW3 Ms. Sunita Kumar, Inspector (Customs), Air Cargo Unit, DW4 Sh. Rajendar Kumar Jindal, Asst. Commissioner Customs, DW5 Sh. Rama Kant Subudhi, Dy. Manager, State Bank Of Hydrabad, DW6 Sh. Shivendra Kumar, Sales Manager, Courean Cargo (India) Pvt. Ltd., DW7 Sh. P.S. Atree, Director M/s Atree & Co Pvt. Ltd. None of these witnesses were cross examined on 2/03/2007 by Plaintiff and matter was thereafter posted for final arguments. With the consent of the parties Hon'ble High Court set aside the order dt. 2/03/2007 vide its order dt 28/11/2007 in CM(M) No. 782/2007. Vide order dt. 09/01/2013 Ld. Predecessor of this court allowed the nd Defendant to examine additional witness as mentioned in the 2 list of witnesses. Thereafter, Defendant examined DW2 Sh. Ashutosh Sharda, Dy. Manager, State Bank Of Hydrabad, DW3 Sh. P.S.Atree, Director, M/s P.S. Atree & Company Pvt. Ltd, DW4 Sh. Naresh Kumar, Inspector, Air Cargo Unit, Impot Shed, DW5 Sh. Dhirendar Kumar, Asst. Manager, Broekman Logistic India Pvt. Ltd. As is clear that numbering assigned to subsequent witnesses is common Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 9/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network to previous witnesses and some of the witnesses who were subsequently examined should have been given witness number in succession but has been given same number which were earlier given. It appears that it escaped the attention of all concerned. However, this court is taking in to consideration of testimony of subsequent Defendant's witness as the some of the previous witness were not produced for their cross examination after the permission for their cross examination was accorded to the Plaintiff by the Hon'ble High Court. Testimony of each witness has been appreciated while discussing issue wise findings in order to avoid repetition.
17. After arguments were finally addressed by respective counsels for parties and matter was posted for order, it was realised that Counter claim filed by Defendant has not been registered separately and accordingly, a direction was issued for separate registration of the counter claim and Ld. Counsel for the plaintiff was directed to file photocopy of written statement cum counter claim, replication cum written statement to construct separate file for counter claim. On 04.03.2016, Ld. Counsels for both the parties appeared and at their request, issues framed on 24.01.2006 were deleted as some of the preliminary objection had become redundant in view of counter claim.
18. Following issues were framed in the main suit:
1. Whether the Plaintiff has committed breach of contract by not accepting the goods and by canceling the contract Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 10/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network unilaterally? (OPD)
2. Whether the Plaintiff is entitled for the amount prayed for in the plaint? (OPP)
3.Relief
19. Following issues were framed in the counter claim:
1.Whether the counter claimant has committed breach of contract by not delivering the goods to the respondent in time?(OPD)
2.Whether the counter claimant is entitled for the amount prayed for in counter claim? (OPP)
3.Relief
20. Ld. Counsels for both the parties got their statements recorded to the effect that evidence led in main suit is sufficient to cover both main suit as well as counter claim and therefore no further evidence is required and no further arguments is required. Accordingly, this court proceeded to record issue wise finding which are as under.
Issue No. 1(of main suit): Whether the plaintiff has committed breach of contract by not accepting the goods and by canceling the contract unilaterally?
Issue No. 1(of counter claim): Whether the counter claimant/ defendant has committed breach of contract by not supplying the goods in time to the respondent/plaintiff in counter claim?
Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 11/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network
21. Both the issues are taken up together as they are interlinked and originate from the same transaction and will require appreciation of same testimony, material and evidence.
22. The undisputed position is that plaintiff has placed an order for supply of Dalvi Head End System vide offer/order dated 05.05.2003 duly signed on 09.05.2003 for Rs. 16,30,000/. As per th th annexure'A' attached with offer letter/agreement dated 05 /9 . 05.2003, the Head End System comprised of 5 unit of 4 channel2U scrambling unit with audio and video, 1 unit head end update controller and 1 unit access software for use with under 10,000 users.
23. Plaintiff has pleaded that pursuant to the said order, Plaintiff has paid a sum of Rs. 8,00,000/ vide cheque no. 840171 dated 03.05.2003 as an advance and as per agreement and defendant was required to supply the goods by 15.07.2003 as Government of India had directed cable operators to implement CAS system by 15.07.2003. Plaintiff has further pleaded that defendant failed to supply the goods and time and again request was made upon which defendant has assured that delivery would be made by 14/15.07.2003. Plaintiff further pleaded that government postponed the date of implementation of CAS system from 15.07.2003 to 01.09.2003 but the defendant has not supplied the Head End System even by that time and therefore, plaintiff had no option but to cancel the contract with the defendant. Plaintiff wrote a letter Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 12/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network dated 07.07.2003 and 24.07.2003 vide which plaintiff has asked for refund of all the amount paid in advance and defendant has agreed to pay the said amount.
24. Whereas case of the defendant is that plaintiff was required to pay 25% of total agreed amount in advance which plaintiff did not make but despite that defendant placed the order with its foreign supplier Dalvi and remitted the amount to the foreign supplier. The foreign supplier shipped the goods and goods arrived on 05.07.2003 at Delhi Airport and released by custom on 06.07.2003 but it was Plaintiff which did not make the payment nor took the delivery of goods/equipment despite intimation and as result Defendant is entitled to recover the amount/cost of the goods imported. It is further pleaded that the sum of Rs. 8,00,000/ paid vide cheque no. 840171 dated 03.05.2003 was in respect of goods/equipments supplied by the defendant previously and not in respect of the agreement dated th th 5 /9 .05.2003.
25. From the above, admitted position as culled out is that goods were not supplied by 15.07.2003 or by 01.09.2003 and both parties make opposite party responsible for this.
26. Question first arises for consideration is as to whether Plaintiff did not make the advance payment as was required under the contract. Undisputedly, Plaintiff paid a sum of Rs 8,00,000/vide cheque 840171 dt 03.05.2003 which Plaintiff asserts to be an advance but Defendant pleads that advance as required under the agreement Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 13/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network th th dated 05 /9 .05.2003 was not paid and the payment of Rs. 8,00,000/ vide cheque no. 840171 dated 03.05.2003 is in respect of payment of previously supplied goods. Whereas in evidence of DW1, it was the stand that only Rs.4,00,000/ was paid as advanced from the plaintiff and remaining Rs.4,00,000/ was from CAS Electronics (a proprietorship concern of PW1). In the written statement, there is no pleading qua the CAS Electronics. Therefore, the evidence of the defendant qua CAS Electronics is beyond pleadings and cannot be relied upon. Moreover, the defendant did not lead any evidence to prove that there was any previous transaction between the plaintiff and the defendant qua which the aforesaid sum of Rs.8,00,000/ was received by the defendant. As per Plaintiff it was the first transaction with Defendant which assertion has not been dislodged by Defendant even by an iota of evidence. The result of all this discussion is that stand of the defendant is not trustworthy and therefore, it otherwise stand proved that a sum of Rs.8,00,000/ was paid by the plaintiff only th th in respect of agreement dated 05 /9 .05.2003 which is almost 50% of the total agreed amount under the said contract. Thus, the contention of the defendant that advance was not paid is hereby rejected.
27. Defendant has led evidence to prove that on acceptance th th of order dated 05 /9 . 05.2003, the Defendant has procured the goods ordered by the plaintiff from its foreign supplier. DW1 in his examination in chief has placed the copy of two orders referred to as Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 14/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network Ex. DW1/7 and DW1/8 both dated 16.05.2003 amounting to US $ 6500 and US $ 10000 respectively to Dalvi Technology Ltd. UK for supply of Dalvi CAS Head End System. Perusal of DW1/7 and DW1/8 show that both the purchase orders are in respect of goods required by th th Plaintiff under the agreement dt. 05 /9 .05.2003. DW1 has further deposed that Dalvi Technology Ltd. Sent Proforma Invoices for making 75% advance payments by Telegraphic Transfer (TT) and balance against collection of documents through named banker State Bank of Hydrabad, Complex Branch, Lodhi Road, New Delhi. The said amount was paid by State Bank of Hydrabad on 20.05.2003 by TT vide bill no. TT/1415 dated 20.05.2003 to Dalvi Technology Ltd. and remaining amount was paid against original invoice no. LZ/BR/0635 dated 16.06.2003 vide TT/1448 dated 05.06.2003 against the order bearing no. 200304/IMP/08 dated 16.05.2003 on behalf of the defendant. The copies of said Proforma Invoice and Original invoice subsequently exhibited as DW2/1 and DW3/4, Telegraphic Transfer no. TT/1415 & TT/1448 dt 20/05/2003 & 5.06.2003 subsequently exhibited as DW2/2 and DW2/4, and Packing List subsequently exhibited as DW3/5.
28. DW1 has further deposed that Proforma Invoice for software to run the said equipments was raised by Dalvi Technology Ltd. vide Proforma Invoice no. LZ/BR/0616 dated 16.05.2003 to make payment of 75% invoice amount as advance against the aforesaid order. The said advance amount and remaining amount was again Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 15/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network paid through same bank and the Proforma Invoice subsequently exhibited as DW2/6, Original Invoice Ex.DW1/23, telegraphic transfer subsequently exhibited as Ex. DW2/9 and Ex. DW2/7 and Packing List is ExDW1/24. He further deposed that an advance intimation about arrival of goods/equipment was given by the Freight forwarder M/s Courican Cargo (India) Pvt. Ltd., New Delhi on 03.07.2003 and vide bill no. 251 Defendant paid freight chrages of Rs.12,300/. The copy of the said bill (Ex. DW1/25) was subsequently marked as Mark'A'. DW1 further deposed that defendant's clearing agent M/s P.S. Atree & Co. Pvt. Ltd. filed bill of entry no. 514002 dated 05.07.2003 for clearance of goods/equipments at New Custom House, IGI Airport, New Delhi on 05.07.2003 and goods/equipments was duly examined by Custom Appraiser and goods were cleared after paying the custom duty of Rs 1,50,364/ vide T.R.6 No. 97708765 dated 05.07.2003 as assessed by the Custom Authority. Defendant also paid terminal processing charges of Rs.485/ vide bill no. 1B20911 dated 05.07.2003 and got gate pass. Copies of bill of entry no. 5142002 dated 05.07.2003 is Ex.DW1/26, TR6 Challan is Ex.DW1/27 and Terminal storage and processing charges bill No.1B20911 subsequently exhibited as Ex. DW3/3 and Gate Pass is Ex.DW1/29. DW1 further deposed that goods/equipments were delivered at Delhi Airport on 05.07.2003 vide delivery challan no. 16611 dated 05.07.2003 subsequently exhibited as Ex.DW3/1, with custom clearing charges bearing bill no. 01221 dated 05.07.2003 for an amount of Rs.7,734/subsequently exhibited as Ex Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 16/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network DW3/2.
29. Defendant in order to prove that it had placed the order for importing the goods / equipment from foreign supplier and that the goods in fact were delivered to the defendant, has examined four more witnesses i.e. DW2, Deputy Manager from State Bank of Hyderabad, DW3 Sh. P. S Atree, Clearing Agent and DW4 Naresh Kumar, Inspector Air Cargo Units, Import Shed, IGI Airport and DW5 Dhirender Kumar from Broekman Logistic India Pvt. Ltd.
30. DW2 in his chief examination brought the copy of Proforma Invoice date 16.05.2003 Ex DW2/1 and payment advice dated 20.05.2003 Ex DW2/2, telegram message of payment advice dated 20.05.2003 Ex DW2/3, payment advice dated 05.06.2003 against TT/1448 Ex DW2/4, telegram message of payment advice dated 05.06.2003 Ex DW2/5, proforma invoice dated 16.05.2003 Ex DW2/6, payment advice dated 05.06.2003, Ex DW2/8, payment advice dated 20.05.2003 against TT/1417 Ex DW2/9, telegram message of payment advice dated 20.05.2003 Ex DW2/10. In crossexamination he admitted that he has not brought the proof of receipt of ProformaInvoice Ex DW2/1, DW2/4 & DW2/6 by the bank. He volunteered that he had brought the Proforma Invoices. He further admitted that he had not brought the book containing telegraphic transfer records Ex DW2/3, Ex DW2/5, Ex DW2/8 and Ex DW2/10. He further deposed about the procedure of transaction of telegraphic transfer. He further deposed that he had brought all the documents as Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 17/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network per records available. He further deposed that he could not recognize the signature of Chief Manager on Ex DW2/2, Ex DW2/4 & Ex DW2/9.
31. DW3 Sh. P. S Atree brought the summoned record that is delivery challan dated 05.07.2003 Ex DW3/1, bill no. 01221 dated 05.07.2003 Ex DW3/2, Storage and handing charges receipt issued by AAI, Cargo Terminal, IGI Airport for Rs. 485/ vide receipt no 20911 EX DW3/3. In crossexamination he deposed that party provides him with invoice, packing list, Airway bill and delivery order issued by the consolidator / Airline on the basis of which bill of entry for clearing of goods is filed with Custom Department. He further deposed that he was authorised by the defendant company for clearing of air goods from Custom. He further deposed that he does not remember whether the order was by mail or by letter. He further deposed that he had brought the copy of invoice dated 16.06.2003 along with packing list which is Ex DW3/4 and DW3/5. He further deposed that he knows Cat Vision Products Ltd. for whom he provides Custom Clearing Services.
32. DW4 Naresh Kumar, Inspector Air Cargo Unit brought the summoned record i.e. photocopy of bill of entry dated 05.07.2003 against invoice noLZ/BR/0635 dated 16.06.2003 already exhibited as Ex.DW1/26, photocopy of bill of entry dated 05.07.2003 against invoice no. LZ/BR/0636 dated 16.06.2003 already exhibited as Ex. DW1/27 and photocopy of TR6 Challan no.97708765 dated 05.07.2003 Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 18/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network showing payment of Rs. 1,50,364/ already exhibited as Ex. DW1/28. He further deposed that all this documents are attested by Superintendents, Custom Import Shed, Air Cargo Unit, Delhi. In crossexamination he deposed that he had been asked by Sh. R.P. Jindal, Deputy Commissioner, Air Cargo Unit, Delhi to submit documents as mentioned above. The authorisation is Ex DW4/1. He further deposed that the attestation of the documents has been done by Sh. S. P.Singh, Superintendent. He further deposed that he has no personal knowledge.
33. DW5 Assistant Manager in Broekmen Logistics India Pvt. Ltd. He deposed that Courican Cargo India Pvt. Ltd. was tentatively taken over by Broekmen Logistics India Pvt. Ltd in the year 2008. He did not know whether his company has taken over all the liabilities of Courican Cargo India Pvt. Ltd. He further deposed that he cannot say whether the bill no251 dated 03.07.2003 was issued by Courican Cargo India Pvt. Ltd. to the defendant. In cross examination he admitted that he had not worked with Courican Cargo India Pvt. Ltd. and that he has no knowledge about the bill no0251 raised on 03.07.2003. He further deposed that he knows that Broekmen Logistics India Pvt. Ltd. has taken over Courican Cargo India Pvt. Ltd. but his company is not in possession of copy of document mark A placed on judicial file. He further deposed that official of defendant company had inquired from Standard Chartered Bank in this regard but no copy of such document could be procured as it was informed by the bank Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 19/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network officials that such copy could be given only if the then directors could apply for such copy. He further deposed that he had not placed on record any document of taking over process.
34. From the deposition of DW1 to DW5 it stands proved that defendant has placed the orders for supply of goods and equipments as so ught by the plaintiff, with the foreign supplier DALVI Technology Ltd. The bank officials have proved the payment made by defendants to the DALVI Technology Ltd. for import of the goods. The DW3 and DW4 have also proved that goods/equipments were delivered to the defendant after clearance from custom. DW2 specifically proved the Proforma Invoices raised by DALVI Company and the payments made against them. Plaintiff in crossexamination of DW2 did not give any suggestion to the effect that documents brought by DW2 are false and fabricated or are not available in bank or the payment transactions recorded therein are incorrect nor any suggestion was given to the effect that defendant company had no such dealing with the said bank or that no Proforma Invoice was received by it or that it did not make the payment. Similarly, no such type of suggestions were given to the DW3 and DW4. So the cumulative effect of the testimonies of DW1 to DW5 is that defendant has successfully proved that goods and equipments reached Delhi by 05.07.2003 and was delivered to defendant on 06.07.2003 and that the goods/equipment imported were those very items for which Plaintiff had placed the order.
35. Now, the next question is whether after having obtained Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 20/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network the delivery of goods/equipment on 06.07.2003, defendant ever attempted to deliver the goods to the plaintiff or called upon the plaintiff to take the delivery and be ready with payment so as to shift fault upon Plaintiff.
th th
36. The agreement dated 05 /9 .05.2003 mentions that delivery of goods shall be within eight weeks from the date of orders with advance payments and payment terms mentions that 25% of the total order value shall be in advance and balance 75% shall be payable at the time of delivery.
37. From the above terms, it is clear that Section 51 of the Indian Contract Act is applicable, as per which when a contract consist of reciprocal promise to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise. Meaning thereby that defendant need not deliver the goods unless plaintiff is ready and willing to pay for the goods on delivery and plaintiff need not pay for the goods unless defendant is ready and willing to deliver the goods.
38. Keeping this provision in mind, in the facts and circumstances of the present case, it was the defendant who was required to intimate the plaintiff that defendant is ready to deliver the goods and to call upon the plaintiff to be ready with payment. In the written statement it has been the consistent case of the defendant on merits that plaintiff firstly, did not make the advance payment under the contract and that defendant through various letters dated 12.05.2003, 25.05.2003, Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 21/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network 06.07.2003, 08.09.2003 and 29.09.2003 and through many telephonic conversations had always asked the plaintiff to make the payment and take the delivery of goods but the plaintiff did not do either. Plaintiff has denied having received letter dated 12.05.2003, 25.05. 2003, 06.07.2003 and 29.09.2003 and also denied telephonic conversations. It has already been noted above that with respect to advance payment defendant has changed its stand in the evidence whereby deposing that a sum of Rs. 4,00,000/ was received from plaintiff and another Rs.4,00,000/ on account from CAS Electonics Ltd. Thus, it will be seen that defendant changed its stand from non receipt of any advance to receipt of advance to the tune of Rs. 4,00,000/ thereby making its defense non reliable.
39. DW1 deposed that by various letter plaintiff was called upon to take the delivery and make the payment. However, neither the letter dated 12.05.2003 nor the letter dated 25.05.2003, could be said to be relevant for the purpose of present issue reason being by way of aforesaid letters it cannot be assumed that defendant informed that goods are ready for a delivery on 06.07.2003. Even otherwise no th th attempt was made to prove these letters dt 12 and 15 May 2003, simply for the reason that there is no whisper as to how these letter was sent or delivered to the Plaintiff.
40. Letter dated 06.07.2003 assumes importance. Defendant has pleaded that vide letter dated 06.07.2003 plaintiff was called upon to make the payment and take delivery. Plaintiff has denied having Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 22/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network received this letter. However, delivery of this letter upon the plaintiff is not proved nor letter was put to PW1 in cross examination, only suggestion was given. Postal receipts was not allowed to be taken on record. However, perusal of the said postal receipt also weakens the case of the Defendant as this postal receipts has the seal of post office situated at Tis Hazari and is hand written one. Defen dant's office is situated at Noida, no reasonable connection is found between Tis Hazari and Noida particularly at a time when no case is going on. There is another reason for disbelieving this letter dt 6.07.2003 as the postal receipt is hand written whereas postal receipts of admitted letter dt 8.09.2003 is computer generated and from Noida Post office. It is in the judicial notice that somewhere in 2000/2001 computer generated receipts were being issued in almost all the main post office of Delhi. This court has no hesitation to conclude that letter was never sent and was fabricated subsequently for the purpose of defending this case.
41. This court has one more strong reason for firmly believing that this postal receipt for letter dt 6.07.2003 and the letter dt 06.07.2003 were fabricated for the purpose of defense. Defendant in its pleading has relied upon letter dt 12.05.2003, 25.05.2003, 6.07.2003, 8.09.2003 and 29.09.2003. Except letter dt 8.09.2003, Plaintiff has denied having received all this letters. No postal receipt has been filed for letter dt 12.05.2003. Postal receipts for letter dt 25.05.2003, 6.07.2003 and 29.09.2003 are handwritten and are from Post Office at Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 23/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network Tis Hazari whereas postal receipt for admitted letter dt 8.09.2003 is computer generated and from Noida Post Office. It has already been said that no reasonable connection exist between Tis Hazari and Noida where Defendant has its office. Apart from this, all the letters are of one page except the letter dt 29.09.2003 which is of two pages but the postal receipt charges different amount. Postal charges shown in postal receipts for letters dt 25.05.2003, 06.07.2003 and 29.09.2003 are Rs 25/, Rs 30/ and Rs 35/ respectively. Thus, fabrication of these letters/postal receipts is writ large.
42. Change in stand with regard to advance also led this court to disbelieve the Defendant. Introduction of story of receipt of advance from CAS Electronic as new case in evidence and failure to bring anything on record so as to show previous transaction in respect of which it allegedly receipt the aforesaid Rs. 8 lac, all these have cause sever dent in the veracity of Defendant's case. Hence Defendant is not only untrustworthy but has also attempted to overreach this court by filling forged and fabricated letters and postal receipts.
43. Apart from this, in the written statement it has been pleaded by the Defendant that it was the apathy and inability on the part of the Government to implement the CAS System that prompted the Plaintiff to not make payment for imported goods/equipments and take its delivery as it was no longer required in the market leaving the Defendant to rue over its fate since it had made the entire payments for the import of the said goods/equipment Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 24/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network and so is the case in its counter claim but surprisingly not a single word about this has been whispered by the Defendant's witness DW1 and probably rightly so as plaintiff witness PW1 admitted the case of the Defendant. PW1 in cross examination admitted: "it is correct that because of delay on the part of the government to bring in the system in operation, I was not interested to procure the equipments in terms of the agreement." He immediately further volunteered that "besides the reasons was we could not risk our business because we had lost confidence in the company of the Defendant and the time was the essence of the contract between the parties." It has not come on record as to when finally CAS system took off in south Delhi. Further it is the case of the Plaintiff that Government extended the st implementation to 1 Sept 2003 but it is not clear whether it took off st or not on 1 Sept 2003. It is not the case of the Plaintiff that in order to comply with Government direction Plaintiff had to procure the said equipment from other supplier. On the contrary it has come in evidence that Defendant did supply similar equipment on 15.05.2003, though it is not the pleaded case of the Defendant but has been admitted by PW1 in his crossexamination and no objection was raised about it being beyond pleading though when document was put to PW1 such objection was did raised. However, PW1 volunteered that the same was not enough to run the system as being very small component. For the reason that Plaintiff has admitted and has not raised objection as to being beyond pleading, said aspect is also being taken in to Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 25/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network consideration to assess its impact. During the course of argument, Counsel for Plaintiff argued that component was only for demo purpose whereas PW1 has submitted it was not sufficient. Perusal of th th the agreement dt. 5 /9 .05.2003 and Ex.PW1/D2 which is delivery challan and Gate Pass shows that one main unit with five set top boxes were delivered to the Plaintiff for demo purpose. But Plaintiff is silent about this in its pleading and has not returned this to Defendant and the said Unit even for Demo purpose must be of some worth but it is also a fact that supply of said unit does not amount to performance of contract by Defendant otherwise Defendant would not have imported the same. Main Unit is the same Unit which is one of the component required by the Plaintiff and almost equally worth though given for demo purpose.
44. The result of all this discussion is that both Plaintiff and Defendant have not approached the court with clean hand and concealed material fact. Plaintiff having been relieved from implementation of CAS system become reluctant in procuring the equipment and retained the equipment given for Demo purpose without making any attempt to return the same as it would have caused the Defendant to demand for price of the imported goods and take delivery of goods or to adjust the price of said equipment. Moreover it was not at all pleaded that it had received equipment for demo purpose. It is also no where the case of the Plaintiff that it was always ready willing to pay for it or was ready with payment (Court is Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 26/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network conscious of the fact that this is not a suit of specific performance). No evidence was led by the Plaintiff that it had money to pay for it during the relevant period. More over letter dt 7.07.2003 by which Plaintiff has alleged to have reminded the Defendant for supply of goods by 15.07.2003 is not believable for the same reason no postal receipt is accompanied. Moreover, if this letter had been delivered to Defendant, than there is no reason to believe that Defendant would have remained silent as it was already in possession of the goods by 6.07.2003. It is equally true that Defendant had changed its stand and took the help of forged and fabricated letter and thus tried to overreach this court. Apart from this, Defendant in its claim has not given adjustment for the advance amount it had received from Plaintiff if it was only asking for the landed cost that it incurred in importing the good. In fact Defendant proceeded on premise that it had not received any advance which was not true even to its knowledge but went ahead with it.
45. In view of the fact that both has not approached the court with clean hand and both have concealed material fact and for the reason and circumstances stated above and considering the fact that Plaintiff was not interested in procuring the goods and concealed the receipt of equipment for Demo purpose and considering the fact that Defendant changed its stand, fabricated documents and did not give adjustment for claim etc as discussed above, Issue No. 1 of main suit is decided in favor of the Defendant and issue No.1 of the counter claim is decided in favor of the Plaintiff.
Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 27/28 Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network ISSUE No. 2 (of main Suit): Whether the Plaintiff is entitled for the amount prayed for it in the plaint?(OPP) ISSUE No.2 (of Counter Claim): Whether the Counter Claimant is entitled for the amount prayed for it in the counter claim?(OPP)
46. In view of the findings recorded in Issue No.1 of the suit and counter claim and for the same reason Issue No. 2 of the main suit is decided against the Plaintiff and Issue No. 2 of the Counter Claim is decided against the Defendant/Counter Claimant. RELIEF:
In view of the findings recorded herein before, suit of the Plaintiff and counter claim of the Defendant is hereby dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly in each file. Copy of this judgment be kept in both file. File be consigned to record room after necessary compliance.
(Harish Kumar)
Announced in open Court Additional District Judge 13
(Central)/Tis Hazari Courts,
(Judgment contains 28 pages) Delhi/ 19.03.2016
Suit No. 21/2016 Cable Vision Network Vs. M/s Cat Vision Products Ltd. 28/28
Suit No. 265/2016 M/s Cat Vision Products Ltd. Vs. Cable Vision Network