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[Cites 12, Cited by 0]

Delhi District Court

M/S. Kraft King vs M/S. Oshma Aeronautics on 17 April, 2023

     IN THE COURT OF ADJ­07, SOUTH­EAST DISTRICT, SAKET COURTS,
                                                DELHI


Presided By: Mr. Jay Thareja, DHJS

CS No: 207234/2016

M/s. Kraft King,
Pocket C­55D, Gangotri Enclave,
Alaknanda, New Delhi­110019.
Through its Proprietor
Sh. Gaurav Loomba
                                                                                           ... Plaintiff
                                                Versus
M/s. Oshma Aeronautics
101, Mantri Arcade, Pocket B & E,
New Delhi.
Through its Proprietor
Sh. Sujay Kaul
                                                                                       ... Defendant

                        SUIT FOR RECOVERY OF RS.9,00,000/­ etc.

                                         DATE OF INSTITUTION : 30.07.2014
                     DATE OF CONCLUSION OF FINAL ARGUMENTS : 22.03.2023
                                           DATE OF DECISION : 17.04.2023

                                            JUDGMENT

1. The plaintiff has filed this suit against the defendant 1, seeking 1 Initially, the plaintiff had filed this suit against two defendants viz. (a) M/s. Oshma Aeronautics (proprietorship of Sh. Sujay Kaul) and (b) M/s. S.A.R. Aviation Services Pvt. Ltd. However, vide order dated 07.12.2015, the application filed by M/s. S.A.R. Aviation Services Pvt. Ltd. under Order I Rule 10(2) of CPC, 1908 was allowed and the said company was striked off, as a defendant, from this suit. As a result, this suit has only one defendant viz. M/s. Oshma Aeronautics (proprietorship of Sh. Sujay Kaul).

CS No.207234/16

M/s. Kraft King v M/s. Oshma Aeronautics Page no. 1 of 21 recovery of (a) the principal sum of Rs.9,00,000/­, (b) pendente­lite and future interest at the rate of 12% per annum and (c) costs of this suit.

2. In order to justify the recovery of the aforesaid money from the defendant, the plaintiff has inter­alia pleaded in the plaint of this suit that the plaintiff is engaged in the business of providing helicopter services, on hire basis; that the defendant is in the business of providing helicopter services, on demand; that M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) is a company that provides helicopters; that the plaintiff was in need of a Bell­206 helicopter for 25 days in April 2014; that the plaintiff had discussed the said need with the defendant, on 05.03.2014 and the defendant had agreed to arrange the required Bell­206 helicopter for the plaintiff; that in pursuance thereof, the defendant had sent a proposal/draft agreement to the plaintiff by way of an e­mail dated 06.03.2014; that the plaintiff had agreed to the said proposal/draft agreement, signed it with his digital signatures and sent it back, for signing by the defendant but the defendant had never sent back the fully signed agreement to the plaintiff; that on 06.03.2014, the plaintiff had also sent an e­mail to the defendant, seeking addition of two points in the aforesaid agreement but the defendant had not replied to the said e­mail; that at the specific demand/request of the defendant, the plaintiff had done RTGS transfer of Rs.7,00,000/­, on 07.03.2014 and Rs.2,00,000/­, on 10.03.2014, in the bank account of the defendant; that thereafter, when the plaintiff had inquired about the required helicopter, the defendant had informed him that M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) was unwilling to give the required helicopter; that immediately, the plaintiff had requested the defendant to sort out the problem with M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 2 of 21 no. 2); that thereafter, the defendant had repeatedly assured the plaintiff that the problem with M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) will get sorted, but it was not sorted; that upon observing the callous nature of the defendant, the plaintiff had directly approached M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) and found that the defendant had not paid the entire sum of Rs.9,00,000/­ to M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) and signed different agreements with the plaintiff and M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2); that thereafter, the plaintiff had contacted the defendant and the defendant had expressed his inability to provide the required Bell­206 helicopter to the plaintiff; that subsequently, the defendant had sent a SMS to the plaintiff, claiming cancellation of the deal and forfeiture of the sum of Rs.9,00,000/­ paid by the plaintiff; that in response thereto, the plaintiff had sent an e­mail dated 31.03.2014 to the defendant, seeking refund of Rs.9,00,000/­; that in the reply qua the said e­mail, sent on the same day, the defendant had assured the plaintiff that he will speak to M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) for the refund of Rs.9,00,000/­ and get back to the plaintiff, by the evening; that thereafter, the defendant had sent an invoice dated 14.05.2014 of Rs.10,11,240/­ to the plaintiff, reflecting advance payment of Rs.9,00,000/­ towards rent of Bell­206 helicopter and service tax of Rs.1,11,240/­; that on the same day i.e. 14.05.2014, the plaintiff had returned the said invoice to the defendant through courier and informed the said fact to the defendant, through e­ mail dated 15.05.2014; that in response to the e­mail dated 15.05.2014 of the plaintiff, the defendant had informed the plaintiff that the invoice dated 14.05.2014 of Rs.10,11,240/­ had been generated as per the advice of CA and as per the account maintained by the defendant because M/s. S.A.R. Aviation CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 3 of 21 Services Pvt. Ltd. (previously defendant no. 2) had not reversed the funds; that thereafter, the plaintiff had served a legal notice dated 03.06.2014(sic) upon the defendant, inter­alia calling upon him to refund the sum of Rs.2,00,000/­, retained by him and to instruct M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) to refund the sum of Rs.7,00,000/­, retained by it as well as a legal notice dated 03.06.2014(sic) upon M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2), calling upon it to refund the sum of Rs.7,00,000/­, retained by it, to the plaintiff, instead of the defendant; that despite service of said legal notices, no money was paid by the defendant or M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) to the plaintiff and that in such state of affairs, the plaintiff is entitled to recover from the defendant 2, the different sums of money, sought by way of this suit.

3. Upon service of summons for settlement of issues of this suit, the defendant has contested this suit by filing his written statement. In the written statement of the defendant, it is inter­alia pleaded that this Court does not have the territorial jurisdiction to try and adjudicate this suit because the agreement dated 06.03.2014 executed between the parties clearly stipulates that in case of any dispute between the parties, the Courts of Agra shall have exclusive jurisdiction; that the defendant had sent back the duly signed agreement dated 06.03.2014 (with the additional two points) to the plaintiff, through his employee, Ms. Laxmi; that only thereafter, the plaintiff had paid Rs.7,00,000/­, on 2 At this stage, I must specify that in the order dated 07.12.2015, striking off M/s. S.A.R. Aviation Services Pvt. Ltd., as a defendant from this suit, it was recorded that the said relief is being granted to M/s. S.A.R. Aviation Services Pvt. Ltd. because it has already paid Rs.7,00,000/­ to the defendant. Therefore, the entire claim of money made by the plaintiff, by way of this suit, is now directed towards the sole defendant, M/s. Oshma Aeronautics Pvt. Ltd., (proprietorship of Sh. Sujay Kaul).

CS No.207234/16

M/s. Kraft King v M/s. Oshma Aeronautics Page no. 4 of 21 07.03.2014 and Rs.2,00,000/­, on 10.03.2014; that the defendant had never informed the plaintiff that M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) was unwilling to give the required helicopter; that the plaintiff had committed breach of the agreement dated 06.03.2014 by not making the payment of Rs.70,00,000/­ mentioned in the e­mail dated 06.03.2014 and by not making the payment of atleast Rs.30,00,000/­, mentioned in the e­mail dated 08.03.2014; that as a result thereof, the defendant had forfeited the advance sum of Rs.9,00,000/­ paid by the plaintiff; that the plaintiff had unilaterally canceled the agreement dated 06.03.2014 vide the e­mail dated 31.03.2014, without assigning any reason and thereby caused loss to the defendant, in connivance with M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2); that the plaintiff had no reason to directly approach M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) as the defendant was always ready to perform his part of the agreement dated 06.03.2014; that the act of the plaintiff of directly approaching M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) smacks of malafides; that the agreement between the defendant and M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) has absolutely no concern with the plaintiff; that on account of legal/accounting obligations, the defendant had sent the invoice dated 14.05.2014 of Rs.10,11,240/­ to the plaintiff; that the legal notice dated 03.06.2014(sic) was never served upon the defendant and that since, the plaintiff had caused loss to the defendant in connivance with M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no.

2), the defendant cannot be held liable to pay any money to the plaintiff.

4. In the replication qua the written statement of the defendant, the plaintiff has traversed the contents of the said written statement, made the CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 5 of 21 necessary denials and reaffirmed the contents of the plaint. Additionally, the plaintiff has pleaded that instead of him, the defendant had committed breach of the agreement dated 06.03.2014; that the plaintiff had never received the duly signed agreement dated 06.03.2014 (with the additional two points) from the defendant or his employee, Ms. Laxmi; that the e­mail dated 06.03.2014, filed by the defendant qua payment of Rs.70,00,000/­ by the plaintiff to the defendant through RTGS is a forged and fabricated document; that the plaintiff had never connived with M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no.

2); that the plaintiff had received the e­mail dated 08.03.2014 from the defendant, asking him to pay Rs.30,00,000/­; that the plaintiff had objected to the said e­mail and as a result thereof, the defendant had agreed to deposit of Rs.2,00,000/­ only by the plaintiff, on 10.03.2014; that the alleged forfeiture of the advance sum of Rs.9,00,000/­ paid by the plaintiff to the defendant, is illegal and that without rendering any service to the plaintiff, the defendant cannot be permitted to forfeit the advance sum of Rs.9,00,000/­ paid by the plaintiff to the defendant.

5. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 06.03.2017:

"1. Whether this court has no territorial jurisdiction to try and entertain the present suit? OPD
2. Whether the suit of plaintiff is without cause of action as plaintiff himself defaulted in complying with terms and conditions of agreement dated 06.03.2014? OPD
3. Whether the plaintiff is entitled to recover a sum of Rs.9,00,000/­, as prayed for? OPP
4. Whether the plaintiff is entitled to interest, if so, at CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 6 of 21 what rate and for which period? OPP
5. Relief."

6. During the trial of this suit, only one witness viz. PW1 Sh. Gaurav Loomba was examined in support of the case of the plaintiff and two witnesses viz. DW1 Sh. Sujay Koul and DW2 Ms. Laxmi Kardam were examined in support of the case of the defendants.

7. During examination­in­chief, the plaintiff viz. PW1 Sh. Gaurav Loomba had deposed substantially in line with the plaint of this suit and inter­alia tendered in evidence e­mail along with contract with digital signatures, Ex.PW1/1(colly), e­mail dated 06.03.2014, Ex.PW1/2, certificate under Section 65B of the Evidence Act, 1872, Ex.PW1/3, proof of RTGS of sum of Rs.7,00,000/­ on 07.03.2014 and Rs.2,00,000/­ on 10.03.2014 from account no.914020006454892, Ex.PW1/4, copy of contract executed between the defendant and M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no.

2), Ex.PW1/5, e­mail of the plaintiff dated 31.03.2014, Ex.PW1/6, e­mail of the defendant dated 31.03.2014, Ex.PW1/7, invoice, Mark PW1/8, courier receipt, Ex.PW1/9, e­mail dated 15.05.2014, Ex.PW1/10, certificate under Section 65B of the Evidence Act, 1872, Ex.PW1/11, legal notice dated 03.06.2014(sic) issued to defendant, Ex.PW1/12, legal notice dated 03.06.2014(sic) issued to M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2), Ex.PW1/13, postal receipt qua the defendant, Ex.PW1/14 and postal receipt qua M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2), Ex.PW1/15. During cross­examination, the plaintiff viz. PW1 Sh. Gaurav Loomba had inter­alia deposed that he had understood the terms and conditions mentioned in the CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 7 of 21 agreement dated 06.03.2014, part of Ex.PW1/1(colly) before affixing his digital signatures and sending the copy to the defendant; that as per his knowledge, Ms. Laxmi, used to work in the office of the defendant at the relevant time; that he had not received the duly signed agreement dated 06.03.2014 (with the additional two points) from the defendant or his employee, Ms. Laxmi; that the agreement dated 06.03.2014 had no relation with the agreement executed between the defendant and M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2); that the agreement dated 07.03.2014, part of Ex.PW1/5, executed between the defendant and M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) had no concern with him; that he has no knowledge if the defendant and M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) had business deals; that he had not made the 100% payment against the minimum agreed flying hours to the defendant; that he had received the e­mail dated 08.03.2014 of the defendant, demanding at least Rs.30,00,000/­ by 10.03.2014; that he had not paid the said sum of Rs.30,00,000/­ by 10.03.2014; that till 10.03.2014, the defendant had not sent any e­mail or letter acknowledging that he will not be able to provide the required helicopter; that he has not filed any documentary proof in support of his testimony viz. that on account of his intervention, M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) had given stop payment instructions qua the cheque of Rs.7,00,000/­ given to the defendant; that he has not filed any documentary proof in support of his testimony regarding the case filed by the defendant against M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) under Section 138 of the NI Act, 1881; that the testimony in paragraph 15 of his affidavit, Ex.PW1/A is beyond the pleadings made in the plaint of this suit; that the payments made by him, were received by the defendant through his banker at Dilshad Colony, CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 8 of 21 Delhi; that it is wrong to say that he had committed breach of the agreement dated 06.03.2014 and therefore, the defendant had rightfully forfeited the advance sum of Rs.9,00,000/­ and that it is wrong to say that he is not entitled to recover any money from the defendant.

8. During examination­in­chief, the defendant viz. DW1 Sh. Sujay Koul had deposed in line with his written statement and inter­alia tendered in evidence agreement dated 06.03.2014, Mark A, e­mail dated 08.03.2014, Ex.DW1/2 and e­mail dated 31.03.2014, Ex.DW1/3.3 During cross­examination, the defendant viz. DW1 Sh. Sujay Kaul had inter­alia deposed that he has been running his business since 2012; that prior to the subject transaction, he had never dealt with the plaintiff; that the agreement dated 06.03.2014, part of Ex.PW1/1(colly) was received by him; that it is wrong to say that he had not sent the duly signed agreement dated 06.03.2014 (with the additional two points) to the plaintiff, through his employee, Ms. Laxmi; that it is wrong to say that the plaintiff had sent an e­mail to him, seeking an electronic copy of the agreement dated 06.03.2014 (with the additional two points); that the plaintiff had asked him to confirm if the helicopter is available; that he had orally confirmed the said fact and even disclosed the tail number of the helicopter to the plaintiff; that he does not remember if he had sent any e­mail to the plaintiff, disclosing the said information; that the advance sum of Rs.9,00,000/­ was given by the plaintiff as token money with the idea that a helicopter will be held back for the plaintiff; that the tail number of the helicopter was informed to him by M/s. S.A.R. Aviation 3 It is relevant to note that during his examination­in­chief, the defendant viz. DW1 Sh. Sujoy Kaul has not tendered in evidence his version of the email dated 06.03.2014 sent by plaintiff, which is part of Annexure D­2 (colly) to the written statement filed by the defendant and which is different from the email dated 06.03.2014, Ex. PW1/2, filed by the plaintiff.

CS No.207234/16

M/s. Kraft King v M/s. Oshma Aeronautics Page no. 9 of 21 Services Pvt. Ltd. (previously defendant no. 2), on 06.03.2014 or 07.03.2014; that it is wrong to say that the plaintiff had repeatedly asked him to furnish the written communication of M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) regarding the tail number of the helicopter till 31.03.2014; that it is wrong to say that he had a dispute with M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) regarding the range, hours and price in respect of the helicopter that was to be provided to the plaintiff and therefore, the entire transaction had failed; that the documents, Ex.DW1/P1(colly) (6 pages) are correct copies of the record of CC No. 2906/2014, M/s. Oshma Aeronautics v M/s. S.A.R. Aviation Services Pvt. Ltd., the complaint case filed by the defendant against M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) under Section 138 of NI Act, 1881; that the contract, part of Ex.PW1/1(colly) does not have any clause regarding token money; that the e­mail ID, [email protected] is of his proprietorship business; that the e­ mail dated 31.03.2014, Ex.PW1/7 is correct; that it is wrong to say that till 31.03.2014, he did not have any confirmed helicopter for the plaintiff; that even though the plaintiff had not paid the 100% of the money for the total minimum fix flying charges plus ferry charges, in advance, he had booked a helicopter for the plaintiff because he was assured that 100% payment will be made, by the plaintiff within few days; that the said assurance was made orally by the plaintiff; that he does not have any written document, reflecting that a helicopter was blocked for the plaintiff; that he had sent e­mail and messages to the plaintiff, informing that he had forfeited the money paid for the helicopter but he has not filed them in this Court; that he had received the e­mail dated 31.03.2014, Ex.PW1/6; that he had received back Rs.7,00,000/­ from M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2); that he had received the e­mail dated 06.03.2014, CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 10 of 21 Ex.PW1/2 and that the contents of the e­mail dated 06.03.2014, Ex.PW1/2 and the e­mail, Mark DW1/P2 (filed by him) are different.

9. During examination­in­chief, DW2 Ms. Laxmi Kardam had deposed that she had worked for the defendant in 2013­14; that she had left the services of the defendant in 2015; that due to passage of time, she does not remember if she had delivered the agreement dated 06.03.2014, Mark A at the office of the plaintiff; that she cannot identify the signatures of the defendant on the agreement dated 06.03.2014, Mark A and that she does not remember anything about the agreement dated 06.03.2014, Mark A. Despite grant of opportunity, the plaintiff had not cross­examined DW2 Ms. Laxmi Kardam.

10. In order to adjudicate upon this suit, I had heard Sh. Sanjeev Kumar Sharma, Ld. Advocate for the plaintiff and Sh. Yogender Singh, Ld. Advocate for the defendant, on 22.03.2023. The issue wise findings, in this suit are as follows:

ISSUE NO.1 "1. Whether this court has no territorial jurisdiction to try and entertain the present suit? OPD"

11. The record of this suit reflects that this issue was treated as a preliminary issue by the Ld. Predecessor Judge and that this issue was decided in favour of the plaintiff and against the defendant by the Ld. Predecessor Judge vide a detail order dated 16.12.2017. In view of the said order it is recorded that this Court has the territorial jurisdiction to try and adjudicate this suit.

CS No.207234/16

M/s. Kraft King v M/s. Oshma Aeronautics Page no. 11 of 21 ISSUE NO.2 "2. Whether the suit of plaintiff is without cause of action as plaintiff himself defaulted in complying with terms and conditions of agreement dated 06.03.2014? OPD"

12. In respect of this issue, the case of the defendant is (a) that in March 2014, he had arranged the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014 and thereby performed his part of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A;
(b) that he had duly communicated the factum of arrangement of the required Bell­206 helicopter to the plaintiff and (c) that despite him having done so, the plaintiff had flagrantly committed breach of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, initially by not paying to the defendant, the Rs.30,00,000/­, referred in the e­mail dated 08.03.2014, Ex.DW1/2 and subsequently by unilaterally canceling the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, without any cause. Per contra, the case of the plaintiff is (a) that in March 2014, the defendant had not arranged the required Bell­206 helicopter for use by him in 25 days of April 2014 and thereby failed to perform his part of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A; (b) that consequently, the defendant had never communicated to him, the factum of arrangement of the required Bell­206 helicopter and (c) that in such state of affairs, he had legally canceled the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A. CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 12 of 21
13. Upon examining the probative value of the competing evidence led by the parties qua this issue, I find that this issue is liable to be decided in favor of the plaintiff and against the defendant, on account of the following reasons.
14. Firstly, this issue is liable to be decided in favor of the plaintiff and against the defendant because neither in his written statement nor during his evidence, the defendant viz. DW1 Sh. Sujoy Kaul has disclosed to this Court, the exact date of March 2014, when he had communicated to the plaintiff that he has arranged the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014, from M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no.
2)4 and because in the absence of the said relevant particular (which, ideally should have been expressly pleaded in the written statement of the defendant), the logical conclusion that follows is that in March 2014, the defendant had failed to arrange the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014 and thereby failed to perform his part of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A.
15. Secondly, this issue is liable to be decided in favor of the plaintiff and against the defendant because neither in his written statement nor during his evidence, the defendant viz. DW1 Sh. Sujoy Kaul has disclosed the tail number of the Bell­205 helicopter arranged by him for use by the plaintiff in 25 days of April 2014, from M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no.
2)5 and because in the absence of the said relevant particular (which also, ideally should have been expressly pleaded in the written statement of the defendant), 4 Even during the hearing of final arguments, the said date was not disclosed to this Court. 5 Even during the hearing of final arguments, the said tail number was not disclosed to this Court.
CS No.207234/16

M/s. Kraft King v M/s. Oshma Aeronautics Page no. 13 of 21 the logical conclusion that follows is that in March 2014, the defendant had failed to arrange the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014 and thereby failed to perform his part of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A.

16. Thirdly, this issue is liable to be decided in favor of the plaintiff and against the defendant because despite having full opportunity to do so, the defendant has not examined any official of M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) to prove before this Court that in March 2014, he had managed to arrange the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014, from M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) and because the failure of the defendant to do so also points to the logical conclusion that in March 2014, the defendant had failed to arrange the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014 and thereby failed to perform his part of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A. 6

17. Fourthly, this issue is liable to be decided in favor of the plaintiff and against the defendant because although during his cross­examination, the defendant viz. DW1 Sh. Sujoy Kaul has testified before this Court that the tail number of the required Bell­206 helicopter was communicated to him, on phone, by M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2), on 6 In my view, any official of M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) would have been the best person to shed light on the subject and inform this Court, if the defendant had managed to arrange the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014. Also, in my view, the failure of the defendant to examine any official of M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2), entitles this Court to draw adverse inference against the defendant, as has been done above.

CS No.207234/16

M/s. Kraft King v M/s. Oshma Aeronautics Page no. 14 of 21 06.03.2014 or 07.03.2014, the e­mail dated 08.03.2014, Ex.DW1/2, tendered in evidence by him as well as the admitted email dated 31.03.2014, Ex.PW1/7 tendered in evidence by the plaintiff viz. PW1 Sh. Gaurav Loomba, do not reflect the said position. In this regard, it is noteworthy that in the said emails, the defendant has not even hinted that he has arranged/secured the required Bell­ 206 helicopter (with tail number XXXX) for use by the plaintiff in 25 days of April 2014 from M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) and in the admitted email dated 31.03.2014, Ex.PW1/7, the defendant has even offered to speak to M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) for refund of the advance money paid by the plaintiff. In my view, if the defendant had arranged/secured the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014 from M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2), the tenor of the aforesaid emails, particularly, the admitted email dated 31.03.2014, Ex.PW1/7 would have been different. Instead of offering to help the plaintiff in getting money back from M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2), the defendant would have been grudging about the wastage of the work done by him in arranging the required Bell­206 helicopter (with tail number XXXX) for use by the plaintiff in 25 days of April 2014 and the defendant would have been seeking money from the plaintiff qua the said work, done by him.

18. Lastly, this issue is liable to be decided in favor of the plaintiff and against the defendant because the version of the defendant that in March 2014, he had arranged the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014 and thereby performed his part of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, is CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 15 of 21 completely belied by the memorandum of understanding dated 02.01.2015, which is part of the admitted record, Ex.DW1/P1(colly)(6 pages) of CC No. 2906/2014, M/s. Oshma Aeronautics v M/s. S.A.R. Aviation Services Pvt. Ltd., the complaint case filed by the defendant against M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) under Section 138 of NI Act, 1881. In the second recital of the said memorandum of understanding, it is clearly recorded that the defendant had a dispute with M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) regarding the hours, rates etc. of the Bell­206 helicopter, to be provided to the plaintiff for 25 days in April 2014. In my view, in the face of the said recital of the aforesaid memorandum of understanding, it cannot be accepted that the defendant had performed his part of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A and arranged the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014.7

19. In view of the aforesaid five reasons, this issue is decided in favour of the plaintiff and against the defendant. It is held that the plaintiff had not committed breach of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A. As a corollary thereof, it is further held that by failing to arrange the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014, the defendant had committed breach of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 7 In this regard, reference is craved to the legal maxim, Scots law qui approbat non reprobat (one who approbates cannot reprobate), relied upon in the judgment of the Hon'ble High Court of Delhi in Subhash Chander v Fathay Singh, (2016) 232 DLT 723. In my view on account of the applicability of the said maxim, the defendant cannot be permitted to take a stand in this Court, which is diametrically opposite to the stand taken by him in the Court that had heard the complaint case filed by him against M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2) under Section 138 of NI Act, 1881.

CS No.207234/16

M/s. Kraft King v M/s. Oshma Aeronautics Page no. 16 of 21 06.03.2014, Mark A. ISSUE NO.3 "3. Whether the plaintiff is entitled to recover a sum of Rs.9,00,000/­, as prayed for? OPP"

20. In respect of this issue, the case of the plaintiff is (a) that in pursuance of the agreement dated 06.03.2014, part of Ex.PW1/1(colly), he had paid to the defendant, Rs.7,00,000/­, on 07.03.2014 and Rs.2,00,000/­, on 10.03.2014 and (b) that upon cancellation of the agreement dated 06.03.2014, part of Ex.PW1/1(colly) vide email dated 31.03.2014, Ex.PW1/6, on account of various reasons, including the inability of the defendant to arrange the required Bell­206 helicopter for use by him in 25 days of April 2014, he had become entitled to recover from the defendant, the aforesaid sum of Rs.9,00,000/­. Per contra, the case of the defendant is that he is not liable to pay/refund to the plaintiff, the aforesaid sum of Rs.9,00,000/­ because upon breach of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, by the plaintiff, he had rightfully forfeited the aforesaid sum of Rs.9,00,000/­, as per the clause of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, titled as 'Events of Default and Remedies'.
21. While giving the finding qua issue no.1, it has been held that instead of the plaintiff, the defendant had committed breach of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, by CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 17 of 21 failing to arrange the required Bell­206 helicopter for use by the plaintiff in 25 days of April 2014. In view of the said finding, it cannot be accepted that the defendant could have invoked the clause of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, titled as 'Events of Default and Remedies' and forfeited the aforesaid sum of Rs.9,00,000/­, paid by the plaintiff.
22. In view of the aforesaid, this issue is decided in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover from the defendant, the principal sum of Rs.9,00,000/­.
23. Before drawing the curtain qua this issue, it is clarified that even if I would have found that instead of the defendant, the plaintiff had committed breach of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, I would not have permitted the defendant to forfeit/retain the entire of the aforesaid sum of Rs.9,00,000/­ because in accordance with the judgments in Anoop Singh v Gopal Krishan Bhuradia & Ors., (2018) SCC OnLine 9712, Klintoz Pharmaceuticals Pvt. Ltd. v Ravinder Shankar Mathur, (2018) SCC OnLine Del 11954, Palm Art Apparels Pvt. Ltd. v Enkay Builders Pvt. Ltd., (2017) SCC OnLine 12776, Mera Baba Infrastructure Pvt. Ltd.

v Chailu through LRs, (2019) SCC OnLine Del 11277 and Kailash Nath Associates v Delhi Development Authority, (2015) 4 SCC 136, the defendant was required to plead and prove (a) the actual loss suffered by him on account of the alleged breach of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A by the plaintiff as well as (b) the steps CS No.207234/16 M/s. Kraft King v M/s. Oshma Aeronautics Page no. 18 of 21 taken by him to mitigate the said loss8 and because the defendant has not done so, before this Court. During the hearing of final arguments, the Ld. Advocate for the defendant had submitted that the defendant should be held to be entitled to forfeit/retain the entire aforesaid sum of Rs.9,00,000/­ because a comparison of the agreement dated 06.03.2014, part of Ex.PW1/1(colly)/the agreement dated 06.03.2014, Mark A, executed between the plaintiff and the defendant with the agreement, Ex.PW1/5, executed between the defendant and M/s. S.A.R. Aviation Services Pvt. Ltd. (previously defendant no. 2), reveals that the defendant would have made a profit of more than Rs.9,00,000/­, if the entire deal had gone through. In my view, the said submission of the Ld. Advocate for the defendant would have also not prevailed over me because in his written statement, the defendant has nowhere expressly pleaded the aforesaid hypothesis and because in such state of affairs of the written statement of the defendant, the aforesaid hypothesis appears to be an after thought, which has no foundation in the pleadings (written statement of the defendant).9 ISSUE NO.4 "4. Whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP"

24. In view of the finding given qua issue no. 3 viz. that the plaintiff is 8 For the law regarding the doctrine of mitigation of loss, reference is craved to paragraphs 15 and 16 of the judgment of the Hon'ble High Court of Madhya Pradesh in Pannalal Jugatmal v State of Madhya Pradesh.....
9 In this regard, reference is craved to the judgment of the Hon'ble High Court of Delhi in Lata Chauhan v L.S. Bisht, 2010 (117) DRJ 715), wherein it has been observed that no amount of evidence or arguments in the absence of pleadings can be gone into by the Court.
CS No.207234/16
M/s. Kraft King v M/s. Oshma Aeronautics Page no. 19 of 21 entitled to recover from the defendant, the principal sum of Rs.9,00,000/­, it is clear that the plaintiff is entitled to recover interest from the defendant.
25. In the prayer made in the plaint of this suit, the plaintiff has sought pendente­lite and future interest at the rate of 12% per annum. In my view, the rate of interest claimed by the plaintiff is excessive and in the facts and circumstances of this case, the ends of justice will be met, if the plaintiff is granted pendente­lite interest and future interest at the rate of 6% per annum. 10
26. In view of the aforesaid, this issue is decided in favour of the plaintiff and against the defendant and it is held that the plaintiff shall be entitled to recover from the defendant, pendente­lite interest and future interest at the rate of 6% per annum.
RELIEF
27. As a net result of the aforesaid findings given qua the issues framed in this suit, on 06.03.2017, this suit is decreed in favour of the plaintiff and against the defendant. It is held that the plaintiff is entitled to recover from the defendant
(a) the principal sum of Rs.9,00,000/­, (b) pendente­lite and future interest at the rate of 6% per annum and (c) costs of this suit.

10 As per the judgment of the Hon'ble Supreme Court of India in Central Bank of India v Ravindra, AIR 2001 SC 3095, the grant of pendente­lite and future interest is a subject matter of the discretion of the Court and not to be governed by the agreement between the parties. The Interest Act, 1978 contemplates the grant of interest at the rate of 6% per annum. Also, Section 34 of CPC, 1908, contemplates the grant of interest at the rate of 6% per annum. Thus, the plaintiff has been granted pendente­lite and future interest at the rate of 6% per annum.

CS No.207234/16

M/s. Kraft King v M/s. Oshma Aeronautics Page no. 20 of 21

28. Before parting with this judgment, it is clarified that in addition to what has been said above, the case of the defendant is belied by (a) the fact that upon receipt of Rs.2,00,000/­ from the plaintiff, on 10.03.2014, the defendant had not immediately protested about the non­compliance of the payment terms of the email dated 08.03.2014, Ex.DW1/2;11 (b) the fact that in response to the email dated 15.05.2014, Ex.PW1/10, the defendant had not stated that the invoice dated 14.05.2014 of Rs.10,11,240/­, Mark PW1/8, is genuine and the balance sum/service tax of Rs.2,11,240/­, is still liable to be paid by the plaintiff to the defendant and (c) that till date, the defendant has not sued the plaintiff, for recovery of the balance sum/service tax of Rs.2,11,240/­. 12

29. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.

Digitally signed by JAY 
                                                               JAY     THAREJA
                                                               THAREJA Date:
                                                                       2023.04.17
                                                                            16:39:07 +0530


Announced in open Court                                   (Jay Thareja)
today on 17.04.2023                              Ld. ADJ­07, South East District,
                                                       Saket Courts/Delhi

11 In my view, the said fact vindicates the stand of the plaintiff that after receipt of the email dated 08.03.2014, Ex.DW1/2, he and the defendant had negotiated and only as a result thereof, he had paid to the defendant, Rs.2,00,000/­, on 10.03.2014.

12 In my view, the said fact clearly establishes that the invoice dated 14.05.2014 of Rs.10,11,240/­, Mark PW1/8, is a sham document.

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M/s. Kraft King v M/s. Oshma Aeronautics Page no. 21 of 21