Bangalore District Court
Solutions Infini Technologies vs Zin-Cron Itechnologies Pvt.Ltd on 21 September, 2017
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 21st day of September, 2017.
Present
SRI.RAJASHEKAR VENKANAGOUDA PATIL, B.A.LL.B.,(Spl.)
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.7033/2014
PLAINTIFF : Solutions Infini Technologies
India Private Ltd.,
Company registered under the
Companies Act,
Represented by its Authorized Signatory,
Mr.Faraz Shaikh,
23 years.
Office at No.369, 2nd Floor,
1st 'A' Cross, 7th Block,
Koramangala,
Bangalore-560 095.
(By Sri. G.Devaraj, Advocate)
-VS-
DEFENDANTS : 1. Zin-Cron Itechnologies Pvt.Ltd.,
Represented by its Director
Ms.Jasmin Madhavan,
Office at No.14/765, NRA-99,
Observatory Lane, Palayam,
Trivandrum-695 033.
2. Mr.Arun Vijay,
Aged major,
Managing Director of
Zin-Cron ITechnologies Ltd.,
Office at No.14/765, NRA-99,
Observatory Lane, Palayam,
Trivandrum-695 033.
( D.1 & D.2 - By Sri.AR, Advocate)
2 O.S.No.7033/2014
Date of Institution of the suit : 12/9/2014
Nature of the Suit : Recovery of money
Date of commencement of recording
of evidence : 30/3/2016
Date on which the Judgment was
pronounced : 21/9/2017
Year/s Month/s Day/s
Total Duration : 03 00 09
JUDGMENT
The plaintiff has filed this suit for recovery of Rs.15,49,183/- along with future interest at the rate of 18% p.a. from the date of suit till realization; for court costs and such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff is a registered company incorporated under the Companies Act engaged in the business of providing various services such as inter alia, website designing and development, on line marketing, interest services, e-commerce solutions, m- commerce, multimedia services, wireless and mobile network and IT enabled services with a high reputation in the market. Defendant No.1 company has approached plaintiff through its 3 O.S.No.7033/2014 representatives in the month of August 2011 and requested to provide certain services to the defendant No.1 company pertaining to sending of bulks SMS and promotional SMS for the defendant No.1 company. After due deliberations and discussions, plaintiff company agreed to provide services as sought by defendant No.1 company. In pursuance of these discussions, defendant No.1 had placed purchase order for extending services of bulk SMS/promotional SMS including several purchase orders and the same was accepted and the total value of the same was amounting to Rs.26,61,357/-. Based on these services provided by plaintiff to defendant company, several documents were executed by defendants such as purchase orders and invoices in pursuance of these transactions on different dates and time and plaintiff company effectively performed their part of contract by extending services as agreed and ultimately services was valued at Rs.26,61,357/- and the said sum was stood due from the defendant company. Defendant company issued cheques with the assurance of payment and defendants on several times requested plaintiff not to present the same since they have not deposited sufficient amount in the account pertaining to 4 O.S.No.7033/2014 the cheques issued and however, in November 2012, defendants requested plaintiff to present the cheques for encashment. To the surprise of plaintiff, all the cheques were dishonoured as 'insufficient funds' in the bank account of the defendants. In this regard, private complaint was lodged before Metropolitan Magistrate Court for under Section 138 & 142 of the N.I.Act.
2(a). It is further averred in the plaint that the plaintiff company has deducted the part payment made by defendant either in cash or by cheque and after deducting the payment made by defendant, the outstanding balance amount of Rs.15,49,183/- is remained as due. Inspite of several requests made by plaintiff, defendants did not made any efforts to repay the amount due. Ultimately, plaintiff was constrained to file this suit for recovery of Rs.15,49,183/-. Hence, the suit for recovery of money.
3. After institution of the suit summons, defendants appeared through their counsel and filed their written statement wherein, defendant company admitted with regard to entering of business transaction of receiving services of bulk SMS from 5 O.S.No.7033/2014 the plaintiff company and also admitted that invoices relating to purchase orders were raised by plaintiff and defendant company was regularly making payment to plaintiff company. It is specifically denied by defendants that an amount of Rs.26,61,357/- was never found to be due from the defendant company to plaintiff as claimed by plaintiff in para 6 of the plaint and also denied with regard to the total value of 26 purchase orders was amounting to Rs.17,08,326/-. They also denied that 26 invoices being raised in respect of business transaction and value was assessed by plaintiff relating to business - service is also disputed.
3(a). It is specifically contended that defendant company has made payment of Rs.17,40,508/- relating to 30 invoices by on line transfer through ICICI Bank and further contended that one more purchase order was placed on 3/10/2012 for Rs.50,562/- and plaintiff company issued this invoice between 1/10/2012 and 6/11/2012 total value of these 6 invoices are of Rs.1,63,062/-. Defendant company has made payment of Rs.1,74,250/- in this regard by making on line payment and acknowledgment has been received by plaintiff company. It is specifically contended by defendant that some of the services 6 O.S.No.7033/2014 rendered by plaintiff company were suffering from deficiencies and this was very well informed to the plaintiff company and there was no response from the plaintiff. Defendants have denied with regard to defendant making request not to present the cheques etc. It is specifically contended in para 16 of the written statement that defendants have paid the entire amount due to the plaintiff company. Defendants have paid Rs.1,00,000/- on 31/7/2012 and the allegation made by plaintiff that Rs.16,064/- has been paid on 31/7/2012 is denied as false. The defendants have paid Rs.3,50,562/- between 31/7/2012 and 17/8/2012 and the defendant company has made payment of Rs.1,03,000 through online fund transfer through ICICI Bank which is supported by documents. It is further contended that the claim made by plaintiff in the plaint are baseless not supported by documents. and defendant company has made payment due towards plaintiff company either by making payment on line through ICICI Bank or by sending cheques. Accordingly, claim of the plaintiff is not sustainable and prays to dismiss the suit with costs.
7 O.S.No.7033/2014
4. From the above facts, the following issues were framed:-
ISSUES
1. Whether plaintiff proves that defendant company is due a sum of Rs.15,49,183/- to plaintiff company?
2. Whether plaintiff is entitled for interest at 18% p.a. as prayed in the plaint?
3. Whether suit is barred by limitation?
4. Whether plaintiff is entitled for suit claim?
5. What order or decree?
5. On behalf of plaintiff company, the authorized signatory of the plaintiff company is examined as PW-1 and got marked Ex.P.1 to Ex.P.57 and closed its side.
6. When the case was posted for cross-examination of PW.1, defendant's advocate Sri.KHP prayed time on the ground that he has no instructions from the defendant and company is likely to wound up. Subsequently, case was adjourned for cross-examination of PW.1 on several occasions from 8/6/2016. But, defendant did not turn up nor his counsel. However, on 8/9/2017, Sri.KHP Advocate filed memo of retirement. Defendants called out absent. Cross- examination of P.W.1 was taken as NIL. Case was adjourned for defendant's evidence. Court finds that no reason to 8 O.S.No.7033/2014 adjourn the case and heard the arguments and then, case is posted for judgment.
7. Heard arguments of plaintiff.
8. Findings of this court on the above issues are :-
Issue No.1:- In Affirmative; Issue No.2:- Partly in Affirmative; Issue No.3:- In Negative;
Issue No.4:- In Affirmative; Issue No.5:- As per the final order for the following:-
REASONS ISSUE No.1
9. It is the case of plaintiff that plaintiff is a registered company incorporated under the Companies Act engaged in the business of providing various services such as inter alia, website designing and development, on line marketing, interest services, e-commerce solutions, m-commerce, multimedia services, wireless and mobile network and IT enabled services with a high reputation in the market. Defendant No.1 company has approached plaintiff through its representatives in the month of August 2011 and requested to provide certain services to the defendant No.1 company pertaining to sending 9 O.S.No.7033/2014 of bulks SMS and promotional SMS for the defendant No.1 company. After due deliberations and discussions, plaintiff company agreed to provide services as sought by defendant. In pursuance of these discussions, defendant No.1 had placed order for extending services of bulk SMS/promotional SMS including other several purchase orders and the same was accepted and the total value of the same amounting to Rs.26,61,357/-. Based on these services provided by plaintiff to defendant company, several documents were executed by defendants such as purchase order and invoices in pursuance of these transactions on different dates and time and plaintiff company effectively performed their part of contract by extending services as agreed and ultimately services was valued at Rs.26,61,357/- and the said sum was stood due from the defendant company. When plaintiff presented the said cheques for encashment, they were returned dishonoured with an endorsement "funds insufficient". Defendants have made part payment and after deducting the same, Rs.15,49,183/- is remained as due from the defendants. Inspite of several requests made by plaintiff and issuance of legal notice, defendants did not made any efforts to repay the amount due. 10 O.S.No.7033/2014
10. In order to prove that plaintiff extended services with regard to the purchase order placed by defendants for supply of bulk SMS services and other technical supports, they have produced as many as 57 documents. Ex.P.1 is the Board Resolution which authorized P.W.1 to tender his evidence. However, P.W.1 has produced 24 invoices as per Ex.P.2 to Ex.P.25. If they are carefully perused, they disclose to the fact that these invoices were raised by plaintiff company for extending bulk SMS and promotional SMS on various dates. These documents disclose the name of plaintiff company and each invoice is found to be genuine. Because, proper and relevant notes are made in all these documents relating to the quantity of SMS services provided and the value of services etc. Further, Ex.P.26 is the legal notice dtd:17/12/2012 issued to the defendant company calling upon them to make payment of the amount due and Ex.P.27 is the postal receipt and Ex.P.28 is the complaint given to the postmaster. P.W.1 has produced 24 computer printouts of purchaser orders as per Ex.P.29 to Ex.P.52. These records clearly disclose that the defendant company has placed order with the plaintiff company for extension of bulk supply of SMS service. These 11 O.S.No.7033/2014 documents from Ex.P.29 to Ex.P.52 are found to be regularly and orderly received by the plaintiff company and the service is extended from time to time. Ex.P.53 is the certificate under Section 65B of the Evidence Act. Ex.P.54 is the ICICI Bank statement with details of summary of account as on 30/9/2011 statement showing transactions in current Account No.004705998293 for the period from 1/9/2011 to 30/9/2011 which discloses deposits and withdrawals. Another statement of account of HDFC Bank is marked at Ex.P.55 for the period from 1/8/11 to 31/5/2012. If statements are carefully perused and they are consistent with the invoices raised and purchase orders placed by defendant and payment made by defendant are bonafidely highlighted particularly on 14/9/2011 for Rs.65,000/-, 29/9/2011 for Rs.63,025/-. Close verification of the payment made by defendant is carefully seen and plaintiff has bonafidely deducted these payments and then, he has filed this suit for recovery. Ex.P.56 is the certificate under S.65B of the Indian Evidence Act. Ex.P.57 is the ledger account of the plaintiff company.
11. All these records clearly disclose to the fact that there was transaction between plaintiff and defendants relating to 12 O.S.No.7033/2014 extension of service of technology such as to place bulk SMS orders and that they have been regularly supplied by plaintiff. It is the specific claim of plaintiff that defendants have issued some cheques and they were dishonoured. However, they are not produced before the court. In the absence of that, the liability of the defendants to pay the amount due under civil law continues and that it will not come in the way of this court to ascertain whether plaintiff is entitled for recovery of the amount claimed by plaintiff. It is relevant to note that specific defence taken by defendants is that they are not in due of any amount to be paid to plaintiff and they have made periodical payment by various modes such as on line payment by DD or cheques, etc.
12. In order to substantiate this aspect, defendants have not cross-examined P.W.1. So, the oral evidence of P.W.1 and the documentary evidence produced by plaintiff at Ex.P.1 to Ex.P.57 remained unrebutted.
13. Further, in support of the specific contention of the defendants, that no amount is due from them and they have made regular payment on various occasions was to be proved 13 O.S.No.7033/2014 by them by leading oral evidence and by producing related documents. Defendants have not chosen to cross-examine p.W.1 and they have not stepped into the witness box to tender evidence in support of the contentions raised by them that they are not in due of the claim amount of the plaintiff.
14. In the absence of rebuttal evidence from defendants relating to examination of P.W.1 and marking of documents Ex.P.1 to Ex.P.55, this court has not reason to disbelieve or discard the evidence of P.W.1 and contents of Ex.P.1 to Ex.P.57. Further, the close verification of the invoices marked in series in orderly and also 2 bank statements of accounts of HDFC Bank & ICICI Bank discloses relating to the amount paid by defendants and on verification, it is found that the amount is very well deducted and then suit claim is placed for Rs.15,49,183/-. In the result, court is inclined to answer issue No.1 in the affirmative.
ISSUE No.2
15. Plaintiff has claimed future interest at 18% p.a. on the suit claim amount of Rs.15,49,183/-. However, there is no mention in the invoices about paying 18% interest in case of 14 O.S.No.7033/2014 default on the amount due and there is no written agreement to pay the future interest at 18% p.a. The transaction is a commercial transaction. Hence, as the transaction is commercial in nature, court inclines to award future interest at 12% p.a. on the suit claim amount from the date of suit till the date of realization in the interest of justice and equity. Accordingly, issue No.2 is answered partly in affirmative.
ISSUE No.3
16. Issue No.3 pertains to suit being barred by limitation. It is seen from the records that plaintiff has claimed an amount of Rs.15,49,183/- towards the services extended by plaintiff company with regard to purchase order placed by defendants in series from 30/6/2012 to 28/9/2012. Further, invoices have been raised from 3/7/2012 onwards and the transactions have been regularly done upto to November 2012. Further, in the course of transaction, after issuance of notice, the last request is made on 17/6/2014 for payment of the amount. Even after the last transaction of supply of services, defendant placed purchase order on 28/9/2012. Plaintiff has filed the suit on 12/9/2014. Hence, the suit filed by plaintiff is within 3 years from the date of last transaction i.e., 28/9/2012. 15 O.S.No.7033/2014 Accordingly, court finds that the suit is within limitation. Accordingly, issue No.3 is answered in negative.
ISSUE No.4
17. In view of findings on issue No.1 & 3, this court holds that plaintiff is entitled for the suit claim amount of Rs.15,49, 183/- with future interest at 12% p.a. on the said amount from the date of suit till the date of realization. Accordingly, issue No.4 is answered in the affirmative.
ISSUE No.5
18. In view of findings on issue No.1 to 4, this court proceeds to pass the following:-
ORDER Suit is partly decreed with costs against defendants for a sum of Rs.15,49,183/- with future interest at 12% p.a. from the date of suit till realization of amount.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 21st day of September, 2017).
(Rajashekar Vankanagouda Patil) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
16 O.S.No.7033/2014ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Faraz Shaikh
b) Defendants' side :
- NIL -
II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Board Resolution
Ex.P.2 to 24 Invoices
Ex.P.25
Ex.P.26 Office copy of the legal notice
dtd:17/12/2012
Ex.P.27 Postal receipt
Ex.P.28 Complaint given to postal authorities
Ex.P.29 to Computer printouts of 24 purchase
Ex.P.52 orders
Ex.P.53 Certificate U/S. 65-B of Evidence Act
Ex.P.54 & Bank statement of plaintiff
Ex.P.55
Ex.P.56 Certificate U/S 65-B of Evidence Act
Ex.P.57 Ledger account of plaintiff
(b) Defendants' side : - NIL -
(Rajashekar Venkanagouda Patil)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-
17 O.S.No.7033/2014
21/9/20107
Plaintiff - By GR
Defendant - By RR
Judgment pronounced in open court
vide separate detailed judgment with the following operative portion:-
ORDER Suit is partly decreed with costs against defendants for a sum of Rs.15,49,183/- with future interest at 12% p.a. from the date of suit till realization of amount.
(Rajashekar Venkanagouda Patil) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.