Bangalore District Court
Capricot Technologies Pvt Ltd vs Shwetha Prabhakar Joshi on 17 January, 2024
SCCH-11 1 S.C.No.577/2021
KABC020214112021
IN THE COURT OF I ADDL. SMALL CAUSE JUDGE,
BENGALURU. (SCCH-11)
DATED THIS THE 17TH DAY OF JANUARY - 2024
PRESENT: SRI.RAGHAVENDRA.D, B.COM, L.L.B.
I ADDL.SMALL CAUSES JUDGE
SC No.577/2021
PLAINTIFF:
Capricot Technologies Private Limited,
A Company registered under the Companies
Act, 1956/2013, Having its registered Office
at No.6, 2nd Floor, Service Road, 2nd Stage,
WOC Road, Mahalakshmipuram,
Bengaluru - 560 086.
Represented by its General Manager
Finance Sri.Raghavendra.K.S.
(By Smt.Kalpana K Hombal, Advocate)
//Versus//
DEFENDANT:
Shwetha Prabhakar Joshi,
Proprietor in Urban Works, No.148,
1st Floor, Sri Gururaghavendra Complex,
SCCH-11 2 S.C.No.577/2021
Above Union Bank, Basaveswara Circle,
Raj Rajeshwari Nagar, Bengaluru - 560 098.
GST No.29ANLPJO923D1Z6.
(Defn - By Sri.Anish Acharya, Adv.)
JUDGMENT
This is a suit filed by the plaintiff against defendant for recovery of sum of ₹.1,71,151/- with interest at the rate of 18% p.a., from the date of suit till realization of suit claim.
2. The case of the plaintiff in brief is that:-
The Plaintiff company is registered under the Companies Act having its registered office at Bengaluru and engaging in providing IT products and services. The defendant is a proprietorship having its office at Rajarajeshwari Nagar, Bengaluru and the defendant placed order for purchase of software product. As per purchase order No. PO/18-19/009 dated 11th October 2018. The plaintiff supplied the software product by rising Invoice No. 21365 dated 22.10.2018 for ₹.1,33,399/-. The defendant on receipt of invoice has paid part SCCH-11 3 S.C.No.577/2021 payment of ₹.20,000/- through NEFT dated 11.10.2018 out of ₹.1,33,399/-, but the defendant failed to pay balance amount of ₹.1,13,399/- inspite of repeated reminders and personal visit by the plaintiff, the defendant has failed to take any steps to discharge the outstanding due amount. The transaction between the plaintiff and defendant is commercial transaction. Hence, defendant is liable to pay interest @ 18% p.a. The plaintiff also issued a legal notice dated 28.01.2020 calling upon the defendant to pay due amount. In spite of issuance of the notice also, the defendant not paid the due amount, hence the plaintiff is forced to file suit against the defendant for recovery of due amount.
3. On service of summons, the defendant appeared before the court through her counsel and filed her written statement.
4. In her written statement, she has denied the plaint averments and further, she has contended that she is an SCCH-11 4 S.C.No.577/2021 Architect and an Interior Designer by profession. Further, it is contended that the plaintiff represented to her that they are one of the authorized person of AUTOCARD and sent request to visit her office to discuss with regard to the product, as she is an Architect, shows very much interest to know about new product and how it would help in her business and thus there is schedule meeting with the plaintiff. On visiting the plaintiff insisted to look into her computers, she denied permission to the plaintiffs then the plaintiffs threatened her and proceed to search the system in the guise of conducting an audit. Further, it is contended that she has realized that they are not the authorized agent of Autocard to conduct audit and hence she withdrawn the permission for carrying out audit granted earlier. Further, she asked the plaintiff and his team to leave her office. In spite of that also group of 4 to 5 persons entered her organization and conduct the audit. The plaintiff threatened and abused her verbally by using filthy language and the plaintiff obtained her signature on purchase order by SCCH-11 5 S.C.No.577/2021 using the force and coercion and also forcefully took payment of ₹.20,000/- and thereafter forcefully obtained the signatures to certain forms. Further, it is contended that out of fear and anxiety she has transferred ₹.20,000/- by way of online and the plaintiff pressurized her to purchase the software. She has also issued a reply to the notice issued by the plaintiff. The plaintiff has falsely and frivolously claiming the amount. The plaintiff by threat and coercion taken ₹.20,000/- from her. Hence, prays to dismiss the suit.
5. Now the points that arise for my consideration are that:
POINTS
1) Whether the plaintiff proves that he has supplied software to defendant and same was using by the defendant?
2) Whether the plaintiff further proves that the defendant fails to pay the balance invoice amount?
3) Whether the plaintiff is entitled for relief as prayed for?SCCH-11 6 S.C.No.577/2021
4) What order?
6. In order to prove the case of plaintiff, the authorized representative of plaintiff company by name Sri. Raghavendra K.S., stepped into the witness box and filed an affidavit in lieu of chief examination by reiterating plaint averments and examined as PW.1 and got produced and marked documents at Ex.P.1 to Ex.P.18 and closed his side of evidence. On the other hand, the defendant stepped into the witness box filed an affidavit in lieu of chief-examination and examined as DW.1 by reiterating the written statement averments and got produced and marked Ex.D1 to D6 documents and closed her side of evidence.
7. Heard arguments on both the sides and perused the materials available on record. The learned counsel for plaintiff also filed written arguments. I have carefully perused the written arguments filed by learned counsel for plaintiff.
8. My findings to the above points are as follows: SCCH-11 7 S.C.No.577/2021
Point No.1 : In the Negative.
Point No.2 : In the Negative Point No.3 : In the Negative Point No.4 : As per final order for the following :
REASONS
9. Point No.1 & 2 :- Both points are taken up for discussion in order to avoid repetition of facts and evidence.
It is the case of plaintiff that the Plaintiff firm is engaging in providing IT products and service. In this context, the defendant placed order for purchase of AUTOCAD as follows ;
(i) AutoCAD including specialized toolsets AD Commercial New Single user ELD Subscription Part No: CIRK1-WW1762-T727, Contract No. 110002348259.
(ii) AutoCAD including specialized toolsets AD Commercial New Single user ELD Annual Subscription PROMO Part no; CIRK1-WW6110-T615, Contract No. 110002348259 in view of purchase order No. PO/18-19/009 dated 11- Oct-2018 the plaintiff company raised an invoice and supplied the said software to the defendant. The defendant paid SCCH-11 8 S.C.No.577/2021 ₹.20,000/- as advance through NEFT and she failed to pay the remaining balance of ₹.1,13,399/-. The defendant has contended that as she was Architect and doing interior designing work in order to know the useful of the product of the plaintiff, she permitted the plaintiff to come to their organization, the plaintiff and their team forcefully audited her computer and they have forcefully demanded to purchase the software and also they have threatened and abused and took her signatures on different papers and the purchase order was placed by force and coercion. She was forced to pay ₹.20,000/-.
10. PW.1 in his chief-examination he has deposed that as per purchase order No. P0/18-19/009 dated 11.10.2018 they have supplied and delivered the software. But the defendant did not paid the balance amount. In support of his chief-examination he has produced Ex.P5 purchase order said to be placed by the defendant. The defendant admitted Ex.P5 purchase order but she has taken a contention that the said SCCH-11 9 S.C.No.577/2021 purchase order taken from her by using coercion and threat. Further, defendant deposed that by using threat, the plaintiff got transferred ₹.20,000/- from her account. No doubt, on perusal of Ex.P5, the defendant placed an order for purchase of software product and as per Ex.P5, the defendant paid advance of ₹.20,000/-. Ex.P5 purchase order dated 11.10.2018 and the plaintiff company raised a tax invoice No. 21365 on 22.10.2018 for ₹.1,33,399/-. Further, plaintiff produced Ex.P12 License Certificate wherein the license commenced from 12.10.2018 and expired on 11.10.2019. So, as per the license it is valid for one year. DW.1 in her cross-examination she has denied the receipt of software products from the plaintiff. Further, the defendant produced Ex.D5 Whatsapp chat. In the whatsapp chat also she has stated that no product delivered to her. PW.1 in his cross-examination he has deposed that he did not know except Ex.P5 purchase order is there any other document to show that the defendant placed order. But their sales team knew about the same. Further, he has deposed SCCH-11 10 S.C.No.577/2021 that they have sent invoice through Email. Further, he has deposed that he has not produced any document to show that the said software was delivered to the defendant. Further, he has deposed that M/s Autodesk Company directly sent license through Email. Further, in his cross-examination he has deposed that M/s Autodesk Company directly sent software license to the customer and they can generate key automatically. Further, in his cross-examination he has admitted that it is the responsibility of the company to install and deliver the software. Further he has deposed that they have sent an Email for installation of the software but defendant has not respond to install software. Further, in his cross-examination deposed that the manufacturing company by sitting in their company they can know whether licensee using software or not. Further, he has admitted that the manufacturing company knows when the software activated and deactivated. Further, in his cross-examination he has deposed that he did not know whether the defendant SCCH-11 11 S.C.No.577/2021 activated the software or not. Once the software purchased, whether it is used or not it will expire for one year. Further, in his cross-examination he has deposed that they have not installed the software as the defendant not respond to installation of software.
11. On meticulous perusal of the oral and documentary evidence placed by the plaintiff, according to plaintiff, the defendant placed purchase order as per Ex.P5. But the defendant contended that the said purchase order was taken under coercion. Further, on perusal of cross-examination of PW.1, it is crystal clear that the software key has to be generated based upon the license issued by the manufacturing company. PW.1 himself has deposed that the duty cast upon the manufacturing company to install the software and the manufacturing company can know activation and deactivation of software. As per the plaintiff document, they have delivered the software through online but the SCCH-11 12 S.C.No.577/2021 manufacturing company has not installed the software. The plaintiff did not know whether the defendant was using their software or not. The plaintiff not delivered the software physically but he has sent through Email and the defendant has to generate key but the burden lies upon the plaintiff to install the software. If the software is not installed defendant cannot use the same.
12. Case on hand, on the basis of the advance payment of ₹.20,000/-, the plaintiff sent license through Email. When the burden lays upon the plaintiff to install the software then it is crystal clear that the plaintiff has not performed his contract. When plaintiff has not installed software then how he is claiming balance due amount from the defendant. Moreover the defendant is not using the software by generating key which was sent through online. Just by sending software through online is not sufficient. If the defendant by generating key was using the software then she is liable to pay balance amount. But in this case, except placing order, there is no SCCH-11 13 S.C.No.577/2021 evidence before the court to show using of plaintiff's software by the defendant On perusal of Ex.P12 license, the license was issued for a period of 12.10.2018 to 11.10.2019. PW.1 deposed that the manufacturing company can know when the software activated and deactivated. But the plaintiff not produced any document to show when the software activated. PW.1 also in his cross-examination deposed that the software will expire for one year whether it is used or not. I am of the opinion that if the plaintiff company installed the software and generated the key then the defendant is liable to pay invoice amount but case on hand, the software was not at all installed. So, under such circumstances, it is not just and proper to direct the defendant to pay balance due amount. Hence, I answered Point No.1 & 2 in the Negative.
13. Point No.3: In view of answering Point No.1 and 2 in the Negative, plaintiff is not entitled for relief as prayed. Hence Point No.3 answered in the Negative.
SCCH-11 14 S.C.No.577/2021
14. Point No.4: In view of my findings given to point No.1 to 3, I proceed to pass the following:
ORDER The suit of the plaintiff is hereby dismissed. The parties shall bear their own costs. Draw decree accordingly.
(Dictated to the stenographer directly typed by her script corrected and revised by me and then pronounced in the open court on this 17th day of January - 2024.) (RAGHAVENDRA.D.) I ADDL.SMALL CAUSES JUDGE BENGALURU ANNEXURE WITNESSES EXAMINED FOR PLAINTIFF:
PW.1 - Sri.Raghavendra.K.S. DOCUMENTS MARKED FOR PLAINTIFF: Ex.P1 Copy of Certificate of Incorporation Ex.P2 Copy of Board Resolution Ex.P3 Authorization letter Ex.P4 Copy of General Power of Attorney Ex.P5 Purchase Order dated: 11.10.2018 Ex.P6 Tax Invoice SCCH-11 15 S.C.No.577/2021 Ex.P7 Computer Generated Ledger Statement Ex.P8 Copy of Legal Notice Ex.P9 RPAD Receipt Ex.P10 RPAD Acknowledgment Ex.P11 Certificate produced U/s.65B of Evidence Act Ex.P12 Autodesk License Certificate Ex.P13 Mail Communication Ex.P14 Autodesk Agreement Ex.P15 Certificate U/s.65B of Evidence Act Ex.P16-17 VAR Agreements Ex.P18 Copy of GST Returns WITNESSES EXAMINED FOR DEFENDANT: RW.1 Shwetha Prabhakar Joshy DOCUMENTS MARKED FOR DEFENDANT: Ex.D1 Copy of Email Ex.D2 Reply Notice Ex.D3 RPAD Receipt Ex.D4 RPAD Acknowledgment Ex.D5 Papers of Whatsapp Chat Ex.D6 Certificate U/s.65B of Evidence Act (RAGHAVENDRA.D.) I ADDL.SMALL CAUSES JUDGE BENGALURU Digitally signed by D D RAGHAVENDRA RAGHAVENDRA Date: 2024.02.01 10:37:38 +0530