Delhi District Court
M/S Travel Planners Pvt. Ltd vs M/S Sumit Information Technologies Ltd on 30 August, 2011
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution : 01.10.2004
Judgment reserved on : 25.08.2011
Judgment delivered on : 30.08.2011
Suit No.91/10/04 Unique Case ID No. 02401C5760322004
M/s Travel Planners Pvt. Ltd.
(A Duly Incorporated Pvt. Ltd.)
Company Registered under the Companies
Act, Having Its Administrative Office
At: A244, Mahipalpur Extn. New Delhi.
Connaught Place, New Delhi.
Through its Administrative Officer, Sh. S.S. Negi. ... Plaintiff
Versus
M/s Sumit Information Technologies Ltd.
816, PhaseV, Udyog Vihar,
Gurgaon (Haryana) ... Defendant
J U D G M E N T
1. Briefly stated the facts of the case are that the plaintiff filed a suit against the defendant for recovery of an amount of Rs.3,46,173/ (Rupees Three Lakhs Forty Six Thousand one hundred and Seventythree only) along with pendentelite and future interest @ 24% per annum till the realization of the whole amount, on the basis of their entries in the account books showing outstanding against the defendant, in their regular course of business.
Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 1
2. It was pleaded that the defendant approached the plaintiff for their services of purchase of air/rail tickets for their organization, vide letter dated 28.01.2000, on the terms mentioned therein, besides the standard business terms. An amount of Rs.2,92,538/ was found due in the account of the defendant, maintained by the plaintiff for which, despite repeated requests and demands to pay, vide letters/fax messages dated 18.07.2002 & 20.02.2003, the defendant failed to pay the same, followed by a legal notice dated 28.01.2003, which was duly replied, admitting a part of the liability, to the extent of Rs.1,44,494/, thus, the plaintiff was compelled to file the present suit, seeking a money decree for an amount of Rs.3,46,173/ along with interest, past, pendentelite and future @ 24% per annum along with the costs of the suit.
3. In the written statement, the defendant averred that no such amount was due against them, taking preliminary objections that the suit was not filed by duly authorized person, and that the courts at Delhi had no jurisdiction to try, decide and adjudicate the present suit also, pleading that no part of cause of action has arisen at Delhi, nor the defendant resides or works for gain at Delhi.
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4. On merits, the defendant has further pleaded that M/s Sumit Infotech Ltd. is a different and distinct company from the defendant, though, some of the directors of M/s Sumit Infotech Ltd. are also the directors of the defendant company.
The liability of the sum of Rs.2,92,538/ was denied, and the defendant had averred that on raising of the claim of Rs.2,92,538/ by the plaintiff, the entire amounts were checked and it was found that it was only Rs.1,44,494/, which was liable to be paid to them, and the defendant has been asking the plaintiff time and again, to come and reconcile the accounts, and to receive the balance payment of Rs.1,44,494/, and execute the receipt of full and final settlement, but the plaintiff failed to reconcile the amount, thus the defendant prayed for dismissal of the suit.
5. Vide order dated 31.08.2005, on the application under Order 12 Rule 6 CPC, a decree was passed for a sum of Rs.1,44,494/, which was the admitted one, and for the balance amount, the suit was directed to be continued.
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6. On the basis of the pleadings of the parties, the following issues were framed by the court, vide order dated 31.01.2006.
Issues
1. Whether the suit has been filed by duly authorized person? (OPP)
2. Whether the Courts at Delhi have jurisdiction to try and adjudicate upon the present suit and whether cause of action has arisen in Delhi? (OPP).
3. Whether plaintiff is entitled to claim made in the plaint (except the admitted amount of Rs.1,44,494/ for which a decree has already been passed in favour of the plaintiff)? (OPP)
4. Whether the plaintiff is entitled to interest, if yes, at what rate and from which date? (OPP)
5. Relief.
7. The plaintiff adduced evidence in the form of two witnesses namely Sh. S.S. Negi, Manager of the plaintiff and Sh.Rajesh Sharma, Sr. Manager, Accounts, whose affidavits are Ex. P1 & Ex.P2 respectively as their examinationinchief, who were also crossexamined at length by the defendant.
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These two witnesses exhibited the following documents:
1. Ex.PW1/1 is the copy of certificate of incorporation.
2. Ex.PW1/2 is the copy of General Power of Attorney.
3. Ex.PW1/3 is the copy of extracts of minutes book.
4. Ex.PW1/4 is the copy of statement of account.
5. Ex.PW1/5 & 6 are the copies of plaintiff's letters dated 18.07.2002 & 20.02.2003.
6. Ex.PW1/7 is the copy of legal notice.
7. Ex.PW1/8 & 9 are the postal receipts dt. 29.01.03 and UPC.
8. Ex.PW1/10 & 11 are the postal receipts dt. 10.05.03 and UPC.
9. Ex.P1 is the plaint.
10.Ex.PW2/1 (colly) is the ledger account.
8. Thereafter the defendant to discharge the burden of proof, produced only one witness namely Sh. Rakesh Kapoor, Director of the defendant. The DW1 has tendered his affidavitinevidence as Ex.DW1/X1 as his examinationinchief, who was also cross examined at length by the plaintiff.
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This witness exhibited the following documents:
1. The documents Ex.DW1/1 to 6 are the true copies of certificate of incorporation.
2. The document Ex.DW1/7 is the original Board Resolution dated 30.03.2010.
3. The document Ex.DW1/8 is the computerized statement of accounts (Colly).
4. The document Ex. DW1/9 is the letter dated 13.02.2003, addressed by the defendant to the plaintiff.
5. The document Ex.DW1/10 is the copies of invoices (Colly).
9. Ld. Counsel Sh. Ashutosh for the plaintiff and Ld. Counsel Sh. Dinesh Kumar Gupta for the defendant addressed the arguments and both also tendered the written synopsis.
Ld. Counsel for the plaintiff has also relied upon following case laws: i. C.K. Sansankan Vs. The Dhanlakshmi Bank Ltd.,2009(2) RCR (Civil) 436 ii. Kalyan Singh Chouhan Vs. C.P. Joshi, 2011 (1) RCR (Civil) 865 iii. Karnail Singh Vs. Kalra Brothers, Sirsa, 2009(2)RCR (Civil) 380 Heard and perused the record, in the light of contentions of the counsels for the parties and the authorities relied by them. Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 6
10. My issue wise findings are as below:
Issue No.1 Whether the suit has been filed by duly authorized person?(OPP) This issue was framed on the preliminary objection of the defendant alleging that Sh. S. S. Negi, is not properly authorized to file, institute and verify the present suit for and on behalf of the plaintiff.
11. Apart from taking such preliminary objection, the defendant has not led any evidence, ocular or documentary to state as to how Sh.S.S.Negi was not properly authorized to file, institute and verify the present suit for and on behalf of the plaintiff. Also, nothing is placed on record through any documentary evidence in this regard. Even during the course of final submissions or in the written synopsis, nothing is said on this aspect.
12. On the other hand, to prove this issue, the plaintiff has proved in evidence of PW1 vide his affidavit Ex. P1 that the plaintiff is a duly incorporated Private Ltd. Company, registered under the Companies Act, vide the Certificate of Incorporation Ex. PW1/1 and that Sh. S. C. Jain, Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 7 Managing Director was authorized to manage, supervise and transact all the business activities and affairs of the company, besides dealing with all legal matters vide GPA Ex. DW1/2 executed in his favour, and that Sh.S.C.Jain, being the Managing Director of the plaintiff company, was fully conversant with the facts of the case and was duly authorized and empowered to file, sign, verify and contest and deal with the present suit, who appointed Sh.S.S.Negi by virtue of Board Resolution dated 01.01.1999 to take all course of action as per Law, for recovery of the amounts payable to the company vide Minute Book, extract of the same were exhibited Ex. PW1/3, and on these aspects the depositions of PW1 remained unrebutted, except for one fact that he had no personal knowledge about the accounts.
13. Also for proving the facts relating to accounts, the plaintiff produced one Sh. Rajesh Sharma as PW2, who tendered his evidence Ex. P2 deposing that being the Sr. Manager (Accounts) of the plaintiff company and responsible for maintaining the Books of Accounts of the company, he had produced the statement of accounts as per the entries to the Ledger accounts that were maintained under Electronic process by computerized accounting system, wherein all the payments due for collection are debited and all the receipts are credited, or adjusted against Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 8 the outstanding amounts and debit balances, outstanding in the name of the parties. This witness exhibited the statement of accounts Ex. PW1/4 and the entries to the Ledger accounts as Ex. PW2/1.
Thus, it is duly proved by the plaintiff that Sh. S. S. Negi, who had filed, verified the suit, was duly authorized person.
Thus, issue No. 1 is duly proved and decided in favour of the plaintiff.
14. Issue No. 2.
Whether the Courts at Delhi have jurisdiction to try and adjudicate upon the present suit and whether cause of action has arisen in Delhi? (OPP).
This issue was again framed on the basis of the preliminary objection of the defendant, pleading that no part of cause of action has arisen at Delhi nor the defendant resides nor works for gain at Delhi.
15. It is observed that, apart from taking the preliminary objection in the written statement, not even a single deposition was found in the evidence led by them including his affidavit Ex. DW1/X1, as to how Delhi courts have no jurisdiction to try this suit. Also, nothing is placed on record through any documentary evidence in this regard. Even during Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 9 the course of final submissions or in the written synopsis, nothing is said on this aspect, except that the defendant company works from Gurgaon and no part of cause of action has arisen at Delhi and that only the Courts at Gurgaon, Haryana has the jurisdiction to try this suit.
16. To the contrary, Ld. Counsel for the plaintiff has submitted that the defendant has approached for assigning the job of rendering service through their Delhi office at D5, Green Park, New Delhi, vide their letter dt. 28.01.2000, and all the tickets, air/rail, were purchased and issued from Delhi and even the statement of account, along with the notice for demand of outstanding amount were served to the defendant at both the addresses at Delhi and at Gurgaon. Therefore, not only the cause of action has arisen in Delhi but all the transactions have taken place in Delhi, the defendant has its office at Green Park, Delhi, which gives jurisdiction to Delhi Courts.
17. The defendant through its pleadings has not denied these facts, nor rebutted these facts during the course of leading evidence. It is observed that document Ex. DW1/8 (colly 38 pages) was filed on behalf of the defendant and the corresponding depositions of DW1 in para 6 of Ex. DW1/X1 states that "all the bills raised by the plaintiff company Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 10 against the defendant in its name are duly entered into account books maintained in its ordinary course of business, terms of payment is also entered in the invoices, Statement of Account of the plaintiff in the books of the defendant company as on today is Ex.DW1/8 (colly), mentions the address of Green Park, Delhi. Thus, the plaintiff has duly proved that the cause of action has arisen in Delhi and even one of the offices/place of work of the defendant was within the jurisdiction of Delhi.
Thus, issue No. 2 is also duly proved and decided in favour of the plaintiff.
18. Issue Nos. 3 & 4
3. Whether plaintiff is entitled to claim made in the plaint (except the admitted amount of Rs. 1,44,494/ for which a decree has already been passed in favour of the plaintiff).? (OPP)
4. Whether the plaintiff is entitled to interest, if yes, at what rate and from which date? (OPP).
For proving these two issues, the onus is laid on the plaintiff. Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 11
19. The plaintiff has claimed the recovery of Rs. 3,46,173/ along with updated interest @ 24% per annum, due, pendentelite and future on the plea that such amount was due as outstanding against the defendant as per the personal account maintained for defendant by the plaintiff company.
20. To prove this issue, the plaintiff has examined Sh.S.S.Negi, the Manager (Admn.), and Sh. Rajesh Sharma, Sr. Manager (Accounts) of the plaintiff company as PW1 & 2, respectively.
PW1, apart from his depositions in the affidavit Ex.P1, exhibited the copy of statement of account as Ex.PW1/4 of the defendant company M/s Sumit Information Technologies Ltd., maintained by them and copies of two letters dated 18.07.2002 and 20.02.2003 as Ex.PW1/5 & 6.
PW2, apart from his depositions in affidavit Ex.P2, exhibited the copy of outstanding statement as on 21.01.2003 in the account, (C S162) maintained for defendant company M/s Sumit Information Technologies Ltd. along with entire ledger account as Ex.PW2/1.
21. On appreciation of evidence of both these witnesses, it is observed that it was deposed by PW1 that plaintiff is carrying on Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 12 business of Travel Agents, Tour Operation, Clearing and Forwarding Agents, whereas the defendant is an exporter and also that the defendant was carrying on its business earlier in the name of M/s Sumit Infotech Ltd., but now in the name and style of M/s Sumit Information Technologies Ltd., and that the defendant had approached the plaintiff for the travel related services for their organization, vide its letter dated 28.01.2000, on the terms mentioned therein, besides the standard business terms.
And that for regular business transactions as assured, the plaintiff was maintaining an open and current account in their books of accounts, in the name of the defendant M/s Sumit Information Technologies Ltd. and as per the statement of accounts Ex.PW1/4, there was an outstanding amount due against the defendant, of Rs.2,92,538/ and along with an interest @24% per annum, as agreed, as per the terms recorded on the face of the invoices, calculating the interest to the tune of Rs.84,760/, the same was requested to be paid vide its letters dated 18.07.2002 and 20.02.2003, Ex.PW1/5 & 6.
It is also observed that PW2, in its affidavit Ex.P2 deposed that he being the Senior Manager (Accounts), was responsible for maintaining the books of accounts of the company under computerized mode, wherein all the payments due for collection are debited and all Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 13 receipts are credited and adjusted against the outstanding amounts and debit balances standing in the name of the parties, in the accounting system and accordingly, the account was maintained for the defendant company and copy of such statement of the outstanding amount along with the entries to the ledger accounts, maintained on the basis of voucher for each transaction are Ex.PW2/1.
22. It is observed that on these depositions and the documents, both these witnesses remained unrebutted either for the ocular evidence or for the documentary. PW1 was specifically questioned on the name of the defendant and it was answered as M/s Sumit Information Technologies Ltd. Also for the specific question about its sister company, the answer was 'NO' and it wad deposed that 'the company has changed its name during our dealings with them'.
23. On careful perusal of the documents attached, it is observed that letter dated January 28th, 2000 is on the letter head of M/s Sumit Infotech Ltd., addressed to the plaintiff company Travel Planners Pvt. Ltd. vide which for M/s Sumit Infotech Ltd., authorized the addressee as their official travel agent with three terms, 1 to 3, mentioned therein. This letter has an address of New Delhi at D5, Green Park. And on the footer, Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 14 it is mentioned 'formerly known as Sumit Data Products Ltd.' Also at the back, it records Mr. Rakesh KapoorCEO, Yashpal Bindra, Director (Sales), D. Joshi, Director (Technology), K. Mahdevan, G.M. (CC), S.Jain, G.M. (Finance) and Smita Gufran, G.M.(HR).
24. Another letter dated March 05, 2001 is also on the same letter head addressing the plaintiff authored by Sumita Gufran for M/s Sumit Infotech Ltd. seeking bookings for their organization, ordering the service to the plaintiff.
25. The letter Ex. PW1/5, is addressed to one Mr. Kapoor of the defendant Company, M/s Sumit Information Technologies Ltd. authored by G.M. (Finance) for the plaintiff, requesting release of outstanding amount. Similarly, the document Ex.PW1/6 is a legal notice, is authored for plaintiff to the defendant company M/s Sumit Information Technologies Ltd.
26. Vide such letter Ex.PW1/6, the defendant M/s Sumit Information Technologies Ltd. has admitted a part liability of Rs.1,44,494/ out of the total outstanding amount of Rs..2,92,538/ (plus interest) raised in the legal notice of the plaintiff, as per its reply dated Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 15 13.02.2003, Ex.DW1/9 authored for M/s Sumit Information Technologies Ltd. addressed to the plaintiff, requesting to correct the discrepancies in the accounts of the outstanding amount, stating that only a sum of Rs.1,84,234/ was payable by the defendant to the plaintiff and through this notice an amount of Rs.39,740/ was released to the plaintiff, admitting the balance of Rs.1,44,494/ as outstanding dues payable to the plaintiff, by the defendant.
27. It is also observed that as per the written statement, on merits, the defendant denied that the defendant company was earlier carrying on the business in the name of M/s Sumit Infotech Ltd. and now in the name of M/s Sumit Information Technologies Ltd., submitting that M/s Sumit Infotech Ltd. is a different and distinct company while defendant company M/s Sumit Information Technologies Ltd., is totally different. It was not disputed that some of the directors of M/s Sumit Infotech Ltd. are also the directors of defendant Company.
28. Further, towards the liability of outstanding amount, it was denied that a sum of Rs.2,92,538/ became overdue, which the defendant has failed to pay on the requests and demands of the plaintiff. Whereas, it was admitted that on raising of the claim of Rs.2,92,538/, the entire Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 16 accounts were checked and it was found that only Rs.1,44,494/ was liable to be paid and that the defendant was willing to pay the said amount. Also that, the defendant was not liable for any interest, as claimed.
But, in the written statement the defendant has not pleaded anywhere that the nonadmitted part of the liability, was not his liability, due to the fact that such liability was of M/s Sumit Infotech Ltd. and not of the defendant company i.e. M/s Sumit Information Technologies Ltd. on the context that certain invoices were issued in the name of M/s Sumit Data Products Ltd. (formerly known as M/s Sumit Infotech Ltd.).
29. However, at the time of evidence, DW1 produced the photocopies of such invoices that were collectively exhibited as Ex.DW1/10, deposing that for such invoices/bills, the defendant company is not liable.
30. Ld. Counsel for the defendant has submitted that for some of the invoices/bills Ex.DW1/10 raised in the name of M/s Sumit Data Products (now known as M/s Sumit Infotech Ltd.), the defendant company, M/s Sumit Information Technologies Ltd. is not liable as both are distinct and different entities and juristic persons and that M/s Sumit Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 17 Data Products Ltd. or M/s Sumit Infotech Ltd. was never made a party to the suit, thus the plaintiff was not entitled for such part of the outstanding amount raised against the defendant.
31. As per record, on the admissions in the written statement, about the past liability of Rs.1,44,494/ out of the total outstanding claimed a decree on admission was passed under Order 12 Rule 6 CPC, vide order dated 31.08.2005, and the trial was continued for the balance amount.
32. To prove its counter plea, to contest the claim of the plaintiff, the defendant has examined only one witness Sh. Rakesh Kapoor, director of defendant M/s Sumit Information Technologies Ltd. as DW1, who tendered his depositions in affidavit Ex.DW1/X1.
33. On appreciation of his evidence, it is observed that this witness has deposed in para 6 of affidavit Ex.DW1/X1, that:
'all the bills raised by the plaintiff company against the defendant in 'its name' are duly entered into account books maintained in its ordinary course of business, terms of payment is also entered in the invoices, Statement of Account Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 18 of the plaintiff in the books of the defendant company as on today is Ex.DW1/8 (colly), reflect that the defendant has no liability to discharge qua the plaintiff, since in terms as admitted in the written statement a sum of Rs.1,44,494/ has been paid..... ...... ..... the decree is finally satisfied."
34. On appreciation of evidence on record, it is observed that this part of the testimony of this witness is unrebutted, on the test of cross examination. Thus, it is clear that as per DW1, all the bills raised by the plaintiff company against the defendant in its name, are duly entered into the account books maintained in its ordinary course of business, in terms of payment is also entered in the invoices, statement of account of the plaintiff, in the books of the defendant company as on today (that on the day of his examination on 03.04.2010), was exhibited as Ex. DW1/8 (colly).
Thus, it is testified by this witness that document Ex.DW1/8 (colly) is a statement of account of the plaintiff company, maintained by the defendant company, for all the bills raised by the plaintiff company into the account books maintained in its ordinary course of business and in terms of payment is also entered in the invoices. Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 19
35. Now come to the document Ex. DW1/8 (Colly). This document is a collective document of 38 pages.
This document reads: Sumit Infotech Ltd.
D5 Green Park, New Delhi110016 Travel Planners PL Ledger Account st 1 Feb 2000 to 25 Nov. 2004 Date Particulars Vch. Type Vch.No. Debit Credit
36. The above document Ex. DW1/8, with its bare literal reading is clear that the defendant company M/s Sumit Information Technologies Ltd. maintained the personal account of the plaintiff with the name & style of M/s Sumit Infotech Ltd. and not as M/s Sumit Information Technologies Ltd. It is also observed that all the corresponding entries qua the bills shown in Ex.DW1/8 are exactly same as mentioned in the document Ex.PW2/1, [collectively seven pages of the outstanding statement for account along with 57 pages of computerized ledger entries for (CS162)], maintained in the name of M/s Sumit Information Technologies Ltd., by the plaintiff, in its books of account. Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 20
37. This rests the controversy as to whether the bills raised by the plaintiff for the services rendered to the defendant was for M/s Sumit Information Technologies Ltd. or for M/s Sumit Infotech Ltd.
38. It is observed that the defendant company M/s Sumit Information Technologies Ltd. has never produced any letter of authorization, authorizing the plaintiff company as its travel agent or the communications of making any orders for services or bills/invoices or the accounts maintained by it in the name and title of M/s Sumit Information Technologies Ltd. for the transactions raised in the suit by the plaintiff and all such records are produced, which are in the name and style of M/s Sumit Infotech Ltd., and the defendant company has admitted a part liability for the outstanding amount of such transactions in question in the suit, that prayed by the plaintiff.
39. It does not matter much as to whether, these two companies run under the same group of companies or by the same or mutually exclusive directors or whether these are distinct and different two companies registered separately with the Registrar of Companies, as per the Certificates on Incorporation exhibited as Ex.DW1/1 to 6, by the defendant.
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40. It is clear from the records consisting of ocular as well as documentary evidence and pleadings of the parties along with the communications exchanged interse, that the defendant company M/s Sumit Information Technologies Ltd. had its internal mechanism to deal with the outside parties either in the name of M/s Sumit Information Technologies Ltd. or M/s Sumit Infotech Ltd.
41. This is also not relevant for the purpose of this case, as to whether, how many names, styles and compositions/constitutions were changed by the defendant company for their internal management and on which date and years, but for the purpose of this case, what was relevant, is that, the defendant company admittedly contacted the plaintiff company vide its letter dated 28.01.2000 for the purpose of authorizing it as official travel agent on certain terms mentioned therein, through its letter head, in the name of M/s Sumit Infotech Ltd., having Mr. Rakesh Kapoor as CEO of this company, the orders were placed, vide letter dated 05.03.2001, through the same letterhead by its GM(HR) Smita Gafran, the notice was received for demand by Mr. Kapoor of M/s Sumit Information Technologies Ltd. with respect to the transactions between the plaintiff and the defendant, the reply was tendered to the notice on behalf of the defendant company M/s Sumit Information Technologies Ltd. to the Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 22 plaintiff, raising discrepancies in the outstanding amount, releasing part payment, admitting a certain amount and the same stand was taken in the written statement by the defendant M/s Sumit Information Technologies Ltd.
42. The document Ex.DW1/8 admittedly, is the personal account of the plaintiff company, maintained by the defendant company M/s Sumit Information Technologies Ltd., but with the name of M/s Sumit Infotech Ltd. for the same transactions and bills raised in the claim of the plaintiff which are the subject matter of this suit and the entries in this document are the same as of Ex. PW2/1, i.e. the statement of account/ledger entries of the defendant company M/s Sumit Information Technologies Ltd. maintained by the plaintiff.
43. The defendant through the depositions of DW1 in para 8 to 11 has contested the claim of the plaintiff in the suit, on the ground that the balance part liability, apart from the admitted liability of Rs.1,44,494/ was not of the defendant company as it was pertaining to the invoices, copy of which is Ex.DW1/10 (Collectively 17 pages) as it was raised in the name of one M/s Sumit Data Products Ltd. (now known as M/s Sumit Infotech Ltd.) and not in the name of the defendant company. Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 23
44. Ld. defence counsel on behalf of defendant company, has raised the contentions that the bills/invoices for the transactions in question against which the plaintiff has raised its claim of outstanding amount of Rs.2,92,538/ were containing certain invoices, copy of which is Ex. DW1/10 (colly 17 pages) of the dates of 22.08.2001, 24.08.2001, 04.09.2001, 07.09.2001, 10.09.2011 and 11.09.2001 in Ex.PW1/4 were in the name of M/s Sumit Data Products Ltd. (now named as M/s Sumit Infotech Ltd.), that is a separate and independent juristic entity to the defendant company and for the amount raised against such invoices, the defendant company was not liable and that the part liability to the extent of Rs.1,44,494/ against other invoices/Bills raised by the plaintiff has already been admitted and paid against the decree passed on admission under Order 12 Rule 6 CPC, thus submitting that for the balance amount, in the suit the defendant company is not liable for the liability of another company M/s Sumit Infotech Ltd., which was not made party to the suit by the plaintiff.
45. Ld. counsel for the plaintiff has countered the contentions vehemently that the defendant company M/s Sumit Information Technologies Ltd. is not the different or distinct or independent company, so far as, the transactions in question are concerned and it was an internal Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 24 arrangement of these companies named under different name and style and one and the same thing for the purpose of the transactions in question and the plaintiff was approached by the defendant company, in the name of M/s Sumit Infotech Ltd. vide letter dated 28.01.2000 at the time of authorizing it for rendering services and such company was changed with the name of M/s Sumit Data Products in whose name the plaintiff was asked to prepare the invoices, but all these companies are under the same group and managed by the same persons.
46. It was also submitted by ld. Counsel for the plaintiff that the defendant company wants to escape its liability raised in the bills for the rightful claim of the plaintiff, by taking a plea that the part of the transactions were with respect to another company in the name of M/s Sumit Data Services Ltd. (now known as M/s Sumit Infotech Ltd.), however, the plaintiff was always dealing with the defendant Company only, for the purpose of regular course of business.
47. It was also submitted that such plea regarding the liability of a separate independent juristic company M/s Sumit Data Products Services Ltd. (now known as M/s Sumit Infotech Ltd) is taken first time in the depositions of DW1 and the depositions in para 8 to 11 of Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 25 Ex.DW1/X1 are absolutely beyond pleadings as raised in the written statement, by the defendant company and the same is absolutely different stand taken in the reply Ex.DW1/9 dated 13.02.2003 of the defendant company to letter of demand dated 18.07.2002 Ex.PW1/5 and thus, part depositions in para 8 to 11 of DW1/X1 are inadmissible in law, in view of the law settled in the case titled as Kalyan Singh Chauhan Vs. C.P. Joshi, 2011 (1) RCR (Civil) 865.
48. From the records, it is also clear that the defendant M/s Sumit Information Technologies Ltd. has not denied that the plaintiff was authorized by it for the travel related services, for their organization, nor it is the case of the defendant that the plaintiff has not rendered such services to the defendant that the Bills/invoices with respect to the transactions in question, were not raised to the defendant company, rather the defendant has admitted a part liability of an amount of Rs.1,44,494/ out of the total claim of Rs.2,92,538/ raised for the outstanding amount in the statement of account of the defendant company.
The defendant has not taken any stand about not receiving of the legal notice Ex.PW1/7, or that it has no concern with the liability of Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 26 the bills/invoices raised for the transactions referred therein nor that some of the dues were not related to it or related to another company M/s Sumit Infotech Ltd. for which the defendant company M/s Sumit Information Technologies Ltd., was not liable. The defendant has nowhere mentioned that M/s Sumit Information Technologies Ltd. was maintaining a personal account in the name of the plaintiff company in its name for the transactions between them nor any such copies of statement of accounts was produced in the court to show that any personal account of the plaintiff was maintained under the name and style of M/s Sumit Information Technologies Ltd. rather the document Ex.DW1/8 produced by the defendant company was maintained under the name and style of M/s. Sumit Infotech Ltd. for the personal account of the plaintiff, in which such Bills/invoices were entered, that was subject matter of the suit and against which a part liability of certain bills/invoices was admitted by the defendant.
Thus, it is clear that the defendant M/s Sumit Information Technologies Ltd. was maintaining the personal account of the plaintiff for the transactions in question of the suit, but under the head with name and style of M/s. Sumit Infotech Ltd., without any explanation given to the court at any place as to why an account Ex. DW1/8 was maintained by the defendant in the name of M/s. Sumit Infotech Ltd. for the personal Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 27 account of the plaintiff, that was produced during the depositions of DW1 deposing that it was the document showing the entries in the accounts relating to the bills/invoices raised by the plaintiff, for the transactions of the defendant company.
49. It is also observed that not only the accounts, copy of which was Ex.DW1/8 maintained in the name of M/s Sumit Infotech Ltd. for the personal account of the plaintiff, was produced as the defendant's company account, but one thing was surprising that one Sh. Rakesh Kapoor, who was mentioned as CEO of M/s Sumit Infotech Ltd. has appeared in the witness box as DW1 and as a director of the defendant company M/s Sumit Information Technologies Ltd. as per Ex.DW1/X1.
Also as per record, the extracts from the minutes of the board of directors of M/s Sumit Information Technologies Ltd. on Monday 15.11.2004, resolving that Mr. Naveen Sharma, Senior Accounts Executive of the Company was authorized to represent the company, in the present case of Travel Planners Pvt. Ltd. filed against M/s. Sumit Information Technologies Ltd., are signed and authored by Sh. Rakesh Kapoor as Managing Director, for M/s Sumit Information Technologies Ltd.
Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 28
Thus, the contentions of Ld. counsel for the defendant are not sustainable regarding the fact that for the claim raised against the bills for the dates of 22.08.2001, 24.08.2001, 04.09.2001, 07.09.2001, 10.09.2011 and 11.09.2001 in Ex.PW1/4 cannot be recovered from the defendant as such bills/invoices were issued in the name of M/s Sumit Data Products Ltd. (now known as M/s Sumit Infotech Ltd.), as it is a different and distinct company than that of defendant company, for the reasons that these invoices Ex.DW1/10 (collectively 17 pages), include two invoices No. R0069924 & D0119778, those are pertaining to the tickets, booked in the name of Sh. Rakesh Kapoor who was examined as DW1 as Director for and on behalf of defendant company M/s Sumit Information Technologies Ltd. Surprisingly, this person was shown as the CEO of the company M/s Sumit Infotech Ltd., and the plaintiff was authorized as travel agent, vide letter dated 28.01.2000, that was written on the letter head of M/s Sumit Infotech Ltd., but two of the tickets mentioned in the bunch of document Ex. DW1/10, were issued in the name of that Sh. Rakesh Kapoor, who has deposed in his affidavit Ex.PW1/X1, in para 8, that reproduced as below:
"on close verification of statement of voucher/material submitted by the plaintiff, it was said that the invoices mentioned therein for the dates of 22nd/24th August 2001, 4th/7th/11th/12th September 2001 were not raised in the name of defendant company and raised in the name of M/s Sumit Data Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 29 Products Ltd.(now known as M/s Sumit Infotect Ltd.) that is having separate legal entity and jurisdic person, dealing independently as independent company and accordingly, the defendant company is not liable to pay any amount as arrears of invoices raised by the plaintiff against the bills/invoices raised in the name of M/s Sumit Data Products Ltd."
The facts above discussed and the depositions of DW1 clearly show that controversy raised by the defendant regarding difference of two companies, was not tenable, on the face of records.
50. On appreciation of evidence on record, on the above discussed facts in the light of the evidence on record, now it has been established on record that the defendant company has not disputed that the plaintiff was engaged and authorized by it as their travel agent for the purpose of rendering travel related services, during the period between 20002003 in question in the suit.
It is clear from the record that such authorization dated 28.01.2000, was on the letterhead of M/s Sumit Infotech Ltd. having its address at D5, Green Park, New Delhi110016, mentioning that it was formerly known as Sumit Data Products Services Ltd. It is also clear from the records that defendant company M/s Sumit Information Technologies Ltd. has not produced any separate document to show that the plaintiff was authorized through any other communication on its Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 30 letterhead or with any document, having the mention of the name and style of M/s Sumit Information Technologies Ltd.
It has also come on record that the orders were placed through the letterhead mentioning the name of M/s Sumit Infotech Ltd. and not on the letterhead of defendant company, as no such document has been placed on record by the defendant company.
It is also established on record that the defendant company has not disputed the transactions/bills/invoices raised for the services rendered by the plaintiff company.
It is also clear from the record that the plaintiff was maintaining a personal account of the defendant in the name of M/s Sumit Information Technologies Ltd. showing the transactions in question and no personal account was maintained by the plaintiff company in the M/s Sumit Infotech Ltd. nor any such account has been produced either by the defendant company or by calling anyone from M/s Sumit Infotech Company Ltd. that, if such company was an independent and distinct entity for the transactions or pertaining to the invoices in question, or any such personal account was maintained by this company, nor it is the case of the defendant.
However, to the surprise of the court, the defendant company M/s Sumit Information Technologies Ltd. has produced document Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 31 Ex.DW1/8 as an account of its company that was maintained at its place in the plaintiff's name, however such document mentions, the name and style of M/s.Sumit Infotech Ltd. and as per the depositions of DW1 in para 6 reproduced above, such statement of account/entries were maintained by defendant company for the bills/invoices raised by the plaintiff company.
51. Thus, the totality of facts produced above and established on record, make it clear that the defendant company, though known as M/s Sumit Information Technologies Ltd., but pertaining to the business transactions with plaintiff company, was using the name and style of M/s Sumit Infotech Ltd. (formerly known as M/s Sumit Data Product Services Ltd.), since beginning as not only the authorization was done under the letterhead in its name, but the orders were placed in the similar letterhead and even the entries in the accounts for maintaining the personal account of plaintiff company was also under the name and style of M/s Sumit Infotect Ltd. as is clear from the document Ex.DW1/8, produced by the defendant company, as its own accounts.
52. It is also not disputed by the defendant company that pertaining to the bills/invoices raised for the claim of outstanding amount of Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 32 Rs2,92,538/ the transactions have taken place between the defendant company and the plaintiff, as the part liability of Rs.1,44,494/ has already been admitted, out of such liability, without raising any disputes, regarding the authorization, the placing of the orders, or of raising of the invoices or maintaining of the accounts, in the name of M/s Sumit Infotech Ltd.
The only dispute raised by the defendant was pertaining to the liabilities regarding certain invoices, copy of which were exhibited as Ex.DW1/10, claiming that such invoices were raised in the name of M/s Sumit Data Products (now named as M/s Sumit Infotech Ltd.). The defendant responds through its reply to the transactions and bills raised,by the plaintiff in the similar fashion, when the other invoices were also raised in the same name and style. The defendant has not produced any copy of invoices against which it has admitted the liability for the amount of Rs.1,44,494/ as to whether, such invoices were raised in the name of M/s Sumit Information Technologies Ltd. or those were also raised in the name of M/s Sumit Data Products Ltd.
53. It has also come on record that the plaintiff was rendering services relating to booking of rail/air tickets for the persons/officers/directors of the defendant company. Sh. Rakesh Kapoor, Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 33 who was examined as DW1, as director of defendant company, has acted as Managing Director as per the records produced in this case and the disputed invoices Ex.DW1/10, also contain two invoices showing the tickets in the name of such Rakesh Kapoor, who was the Managing Director of the defendant company, that shows that the defendant company may be named as M/s Sumit Information Technologies Ltd.,but was working as management for the M/s Sumit Infotech Ltd.(formerly known as M/s Sumit Data Products Ltd.). These companies may be registered in different names, but so far as the transactions in suit are concerned, there appears no difference, when the record placed in the suit are carefully perused, particularly the document Ex.DW1/8, that was admitted as the account entries maintained by the defendant company, but under the name and style of M/s Sumit Infotech Ltd.
Thus, it appears that there is a strength in the contention of the ld. Counsel for the plaintiff, that due to some internal management of the defendant company, the plaintiff was asked to issue invoices in the name of M/s Sumit Data Products Ltd. (now known as M/s Sumit Infotech Ltd.). No copy of invoices in the name of the defendant company has been produced by the defendant company to prove a difference of the invoices for the admitted liability and the disputed liability. Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 34
54. Therefore, it appears that the plea regarding the liability of M/s Sumit Infotech Ltd. for the balance amount of Rs.2,92,538/ Rs. 1,44,494/ = Rs. 1,48,044/ was raised by the defendant only to escape the liability, that was otherwise duly proved against the defendant company, as per the evidence of PW1 & 2, and with the supported documents.
55. It is further, observed that the depositions of DW1 in para 8 to 11 of Ex.DW1/X1 are first time taken by the defendant, at the time of evidence, that was not a part of pleadings, in the written statement of the defendant company, in that manner such part of the evidence was beyond the pleadings.
56. So far as the legal position is concerned, in this regard, it is a well settled principle of law that the evidence beyond pleadings should not be considered at the time of adjudication, as settled in case titled as Kalyan Singh Chauhan Vs. C.P. Joshi, 2011 (1) RCR (Civil) 865 in which a plethora of judgments in the cases titled as Sri Mahant Govind Rao v. Sita Ram Kesho,(1898) 25 Ind. App. 195; M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235; Raruha Singh v. Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 35 Achal Singh & Ors.; AIR 1961 SC 1097; Om Prakash Gupta Vs. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt Vs. Land Aquisition Collector & Anr., AIR 2005 SC 3165; and State of Maharashtra v. Hindustan Construction Company Ltd., (2010) 4 SCC 518, were discussed and in Gajanan Krishnaji Bapat's case it was held that:
'the court cannot consider any fact which is beyond the pleadings of the parties' Also the observations made in case titled as Ram Sarup Gupta (dead) by L.Rs. v. Bishun Narain Inter College & Ors., AIR 1987 SC 1242, are relied wherein it was held:
It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet........ In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 36
57. Thus, on the basis of above observations on facts and law, it is observed that the depositions in para 8 to 11 of affidavit Ex.DW1/X1, cannot be considered, being based on the facts beyond pleading of the defendant company.
58. Then what left is para 6 of affidavit Ex.DW1/X1, that relates to the liability of the defendant company in question and this document, produced by the defendant company as the account record maintained by it for plaintiff company. This document, clearly mentions all such the invoices mentioned in document Ex.DW1/10 for which the liability of the defendant company was disputed. This document Ex.DW1/8 is exactly tallying with the document Ex. PW2/1, on the basis of which, the plaintiff's claim of outstanding amount of Rs.2,92,538/ rests.
Thus, the contentions of ld. Counsel for the defendant contesting the claim of the plaintiff, are not sustainable.
Therefore, on the basis of the evidence of the parties, it is duly established by the plaintiff that the defendant was liable for the whole of the outstanding amount of Rs.2,92,538/ raised by it along with the interest of Rs.84,763/ claimed over the amount.
It has come on record that an amount of Rs.39,740/ has been released by the defendant on receipt of the legal notice as per document Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 37 Ex.PW1/9, that was not disputed by the plaintiff in the trial.
59. Thus, the plaintiff has proved its claimed of entitlement of the amount of Rs.2,92,538 - 39,740 + 84,763 = 3,37,561/ up to the date of filing of the suit.
Therefore, the issue No. 3, is accordingly decided in favour of the plaintiff and against the defendant to the extent of the entitlement, proved as above.
60. So far as the issue No.4 is concerned, it relates to the interest part and as the plaintiff has requested for its demand through its letters dated 18.07.2002 & 20.02.2003 Ex.PW1/5 & 6 in time, but the claim was kept pending for the contentions raised in the reply to such demand or in the suit raised by the defendant company during trial, thus, the payment of such amount legally recoverable was delayed on the part of the defendant.
61. As the interest, by its definition and nature, is a charge over the amount duly recoverable from a party, but retained on one or the other pretext by the other liable to pay, thus, in the above noted circumstances, the plaintiff is also entitled for the 'interest' on the principle amount duly Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 38 recoverable from the defendant company from the date it became due till its realization.
62. For the rate of interest, ld. Counsel for the plaintiff has submitted that in case the rate of interest though not provided in the agreement, the reasonable rate of interest on the basis of market rate can be awarded in view of law settled in the case titled as C.K. Sasankan Vs. Dhan Laxmi Bank Ltd., RCR Civil 436, 2009 (2).
63. For the interest part, it is observed that the invoices raised by the plaintiff to the defendant have mentioned a contractual term of interest mentioned on the face of it, as 24%, if not paid on presentation. Thus, relying on the observations made in the case titled as C.K. Sasankan Vs. Dhan Laxmi Bank Ltd., RCR Civil 436, 2009 (2) and also in the light of the provisions laid in Section 34 of CPC & on the basis of the contractual rate of interest mentioned on the invoices raised and duly received by the other party, the plaintiff has established its claim @ 25% per annum.
64. For the sake of clarity and in order to appreciate the contentions of ld. Counsel for the plaintiff, in the light of provisions of Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 39 Section 34 of CPC, the provisions of Section 34 of CPC are reproduced herein below:
"Where and in so far as a decree is for the payment or money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjusted, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, 2(with further interest at such rate not exceeding six per cent, per annum as the Court deems reasonable on such principal sum from) the date of the decree to the date of payment, or to such earlier date as the Court thinks fit"
65. Here the invoices/bills, can be treated as terms of the contracts between the parties, agreed as per the bills/invoices raised.
Thus, issue No.4 is also decided accordingly in favour of the plaintiff.
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66. Issue No.5 Relief:
In view of the above observations and findings on the issues above discussed, the suit of the plaintiff for recovery is decreed.
Accordingly the plaintiff is entitled for the money decree against the defendant for: i. Principle amount of Rs.3,37,561/ along with; ii. An interest @ 24 % per annum on such principal amount from the date of filing of the suit till its realization, and iii. The cost in the suit, to the extent of the Court fees paid. The principle amount shall be subject to deduction of the amount of Rs.1,44,494/ already paid towards the satisfaction of the decree on admission.
Decree sheet be drawn accordingly.
File be consigned to R/Room.
Announced In the open Court (Dr. Archana Sinha)
30th August, 2011. Addl. District Judge,
Centl.04, Tis Hazari Courts,
Delhi. 30.08.2011
Suit No.91/10/04 Travel Planners Vs. Sumit Information Technologies Ltd. Page No. 41