Delhi District Court
Techtree It Systems Pvt. Ltd vs Global Tech Publishing on 10 September, 2018
IN THE COURT OF MS.NUPUR GUPTA, CIVIL JUDGEI, NEW DELHI
Judge Code DL0804
C.S. No.56887/16
Unique Case ID No.
TechTree IT Systems Pvt. Ltd.
Registered office address : #2058, Ground Floor, Sector C
Pocket 2, Vasant Kunj, New Delhi110070 ... Plaintiff
Versus
Global Tech Publishing
#138, 1st Floor, P.K. Jewellers Building
Vidyaranyapura, Bangalore560097 ... Defendant
Date of Institution : 01.06.2013
Date of Reserving Judgment : 02.08.2018
Date of Judgment : 10.09.2018
SUIT FOR RECOVERY OF RS. 1,52,568/ (RUPEES ONE LAC FIFTY
TWO THOUSAND FIVE HUNDRED AND SIXTY EIGHT ONLY) WITH
PENDENTELITE AND FUTURE INTERESTS @24% PER ANNUM
JUDGMENT
1. By filing the present suit, the plaintiff company has sought recovery of Rs. 1,52,568/ with pendentelite and future interests @ 24% per annum from 13.09.2012 till realization alongwith costs of the present suit against the defendant.
CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 1/15 PLAINTIFF'S VERSION AS PER PLAINT
2. Succinctly, the plaintiff has asserted that it is a private limited company incorporated under the Companies Act, 1956 having its registered office as stated above and the present suit has been verified by Sh. Sanjay Ahuja, director of the plaintiff company. It is submitted that plaintiff company is involved in the development and marketing of softwares developed by the plaintiff company or its associates. It is further submitted that the defendant had approached the plaintiff company for supply of a software, namely, Broad Vision Quick Silver Version 3.6 for windows on a license basis for one year, which was further renewed after the expiry of the said one year.
3. It is further submitted that on the asking of the defendant, the plaintiff had sent a price quotation dated 07.09.2012 to the defendant wherein it is mentioned that the delivery of the said software was to be made by the plaintiff within ten days and the full payment as set out in the quotation was to be made within five working days of the delivery of the product. It is further submitted that on accepting the terms and conditions of the quotation dated 07.09.2012, the defendant had issued purchase oder dated 09.09.2012 and pursuant to that, the software was supplied to the defendant by the plaintiff. In this regard, the plaintiff had raised a invoice dated 13.09.2012 upon the defendant and it is clearly mentioned in the said invoice that any late payment shall be subject to a past due fee of 1.5% per month.
4. It is further submitted that however, the defendant failed to pay the consideration under the aforesaid invoice within the stipulated period and CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 2/15 even the plaintiff had served a letter of demand dated 26.02.2013 upon the defendant thereby calling the defendant to pay the amount within seven days of the receipt of the same, however, the defendant did not respond to the said letter. Hence, the present suit has been filed against the defendant for recovery of Rs. 1,52,568/ with interest @ 24% per annum and past due fee of 1.5% p.m. on the amount as mentioned in the invoice dated 13.09.2012.
5. Initially, the present suit has been filed under Order 37 CPC and thereafter, the application for leave to defend of the defendant was allowed and the defendant was allowed to file its written statement.
DEFENDANT'S VERSION AS PER WRITTEN STATEMENT
6. In its written statement, the defendant had stated that the plaintiff had concealed the material facts and did not disclose the physical delivery of the goods in question. Further, the defendant stated that the plaintiff also concealed that the trial version of the software was not compatible and members of the technical team of the plaintiff company tried to resolve the issue with software, however, they failed to resolve the issue. It is further stated that the present suit is barred by the provision of section 20 of CPC as no part of cause of action has arisen within the territorial jurisdiction of this Court as the defendant is a proprietorship concern situated at Bangalore and the quotation was received by the defendant through email from the representative of the plaintiff who was situated in Bangalore. It is further stated in the written CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 3/15 statement that the physical delivery of the goods in question were never effected.
REPLICATION
7. On 19.11.2015, plaintiff had filed replication to the written statement of defendant reiterating the averments in the plaint. The contents of the written statement were denied and the contents of the plaint were reaffirmed and the claim was maintained.
IDENTIFICATION OF ISSUES
8. Admission/ denial of documents was not conducted. From the pleadings of the parties, following issues were then framed by ld. Predecessor Court vide Order dated 19.11.2015 :
1. Whether the defendant had not received physical delivery of goods (software) from the plaintiff company? OPD.
2. Whether this Court does not have territorial jurisdiction to try the present suit? OPD.
3. Whether the plaintiff is entitled to recovery of suit amount of Rs.1,52,568/ from the defendant? If yes, whether the plaintiff is entitled to any interest and at what rate? OPP.
4. Relief.
EVIDENCE
9. PW1 Davison Mathewkutty stepped into the witness box and CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 4/15 deposed vide his affidavit Ex.PW1/A. He had relied upon following documents: S.No. Exhibit/Mark Nature of Document
1. Ex.PW1/1 Quotation dated 07.9.2012 submitted by the plaintiff with the defendant.
2. Ex.PW1/2 Acceptance of the purchase order issued by the defendant.
3. Ex.PW1/3 Invoice dated 13.9.2012 raised by the plaintiff upon the defendant.
4. Ex.PW1/4 Invoice dated 17.9.2012 raised by the said US company (manufacturer of software) upon the plaintiff along with covering email dated 19.9.2012.
5. Ex.PW1/5 Form 15 CA submitted to the IT Department (online).
6. Ex.PW1/6 Form 15CB submitted to the IT department
7. Ex.PW1/7 Statement of account of the plaintiff company showing payment made to the US company by the plaintiff.
8. Ex.PW1/8 Demand letter sent on behalf of the plaintiff to the defendant on 26.2.2013.
10. This witness was cross examined at length by counsel for the defendant. Thereafter, plaintiff evidence was closed on 02.02.2018. This is entire evidence of the plaintiff adduced in the present case.
11. Thereafter, many opportunities were granted to the defendant for leading defence evidence, however, defendant had not led any evidence and CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 5/15 vide Order dated 03.05.2018, the right of the defendant for leading evidence was closed.
ARGUMENTS
12. Learned counsel for the plaintiff argued that plaintiff has supplied the trial version of the software on the precondition that the defendant will purchase the licensed version of the software and will release the payment within ten days from the date of receiving of the software. It was further argued on behalf of the plaintiff that defendant itself had issued the purchase order upon which the plaintiff supplied the trial version of the software and after that, the licensed version of the software. However, defendant has failed to make any payment. It is further argued on behalf of the plaintiff that since no evidence has been led by the defendant any oral plea of some understanding between the parties cannot be taken into consideration.
13. Per contra, learned counsel for the defendant argued that the licensed version of the software was never delivered by the plaintiff and moreover, no document has been filed by the plaintiff to show that the software has actually been delivered to the defendant. It was further argued by counsel for the defendant that plaintiff has not filed any authority letter of Sh. Sanjay Ahuja through whom the present suit has been filed and rather, Sanjay Ahuja has never appeared in the witness box. It was further argued that this Court has no territorial jurisdiction to try and entertain the present suit.
14. I have heard the submissions of counsel for the defendant and CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 6/15 the legal counsel for the plaintiff. I have also gone through the entire case record meticulously with the kind assistance of both the counsels of the parties. After weighing the rival contentions and after appreciating the evidence adduced, my issuewise findings are as below : ISSUE NO.1 Whether the defendant had not received physical delivery of goods (software) from the plaintiff company? OPD.
15. The onus to prove this issue is upon the defendant. The defendant has taken a plea in its written statement that trial version supplied by the plaintiff was not found suitable and compatible and therefore, the licensed version of the software was never downloaded. The defendant has also stated that since the licensed version of the software was never supplied by the plaintiff, no binding contract between the parties ever came into being.
16. It is relevant quote para 1 of the written statement, which reads as follows:
1. That the plaintiff has concealed the material facts and did not elucidate the truth before this Hon'ble Court. The plaintiff did not disclose that physical delivery of the goods in question was never effected. The plaintiff emailed a link for downloading the licenced version of the software. Since the trial version of the software was not found suitable and compatible, the licenced version of software was never CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 7/15 downloaded. The plaintiff also concealed the fact that trial version of the software was not compatible and members of the technical team of the plaintiff company tried to resolve the issue with software, however they failed to resolve the issue and this lead to the cancellation of the purchase order.
17. Bare perusal of the abovementioned shows that the defendant has itself admitted that the plaintiff had supplied the licensed version of the software through email, however, the defendant has stated that it has not downloaded the same. In fact, defendant has itself placed on record email dated 12.09.2012 vide which the licensed version of the software alongwith its license key was duly supplied to the defendant by the plaintiff. It is also a matter of record that the defendant has not led any evidence to prove the alleged fact of not downloading the licensed version of the software which was supplied by the plaintiff.
18. It is well settled law that onus to prove a fact remains on the person who alleges the same. The onus to prove a issue has to be discharged in affirmation. When the fact is proved in affirmative or evidence is led to prove the same, onus shifts on the other side to negate the existence of such a fact. However, in the present case, defendant has failed to discharge its onus to prove that the defendant has not received the actual physical delivery of the software from the plaintiff. Rather the fact of delivery of the software through e mail is admitted by the defendant itself though disputing that it was not CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 8/15 downloaded.
19. In these facts and circumstances, in dearth of any specific evidence by the defendant, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 2Whether this Court does not have territorial jurisdiction to try the present suit? OPD.
20. The onus to prove this issue is upon the defendant. The defendant had raised a plea that this Court has no territorial jurisdiction to try and entertain the present suit. It is pertinent to mention here that vide Order dated 22.05.2014, while deciding an application under Order 37 Rule 3 (5) CPC, the issue of territorial jurisdiction has already been dealt with by this Court. Also, a perusal of the documents placed on record by the plaintiff shows that the quotation as well as invoice specifically mentions that registered office of plaintiff is in Delhi, which is in jurisdiction of this Court. Moreover, there is a specific mention in the quotation as well as in the invoice that the disputes between the parties are subject to the Delhi jurisdiction.
21. Further, learned counsel for the plaintiff has rightly drawn the attention of this Court to section 13 of Information Technology Act, 2000, which is quoted as below :
13. Time and place of despatch and receipt of electronic record.
CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 9/15 (1) Save as otherwise agreed to between the originator and the addressee, the dispatch of an electronic record occurs when it enters a computer resource outside the control of the originator.
(2) Save as otherwise agreed between the originator and the addressee, the time of receipt of an electronic record shall be determined as follows, namely :--
(a) if the addressee has designated a computer resource for the purpose of receiving electronic records,--
(i) receipt occurs at the time when the electronic, record enters the designated computer resource; or
(ii) if the electronic record is sent to a computer resource of the addressee that is not the designated computer resource, receipt occurs at the time when the electronic record is retrieved by the addressee;
(b) if the addressee has not designated a computer resource along with specified timings, if any, receipt occurs when the electronic record enters the computer resource of the addressee. (3) Save as otherwise agreed to between the originator and CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 10/15 the addressee, an electronic record is deemed to be dispatched at the place where the originator has his place of business, and is deemed to be received at the place where the addressee has his place of business. (4) The provisions of subsection (2) shall apply notwithstanding that the place where the computer resource is located may be different from the place where the electronic record is deemed to have been received under subsection (3).
(5) For the purposes of this section, --
(a) if the originator or the addressee has more than one place of business, the principal place of business, shall be the place of business;
(b) if the originator or the addressee does not have a place of business, his usual place of residence shall be deemed to be the place of business;
(c) "usual place of residence", in relation to a body corporate, means the place where it is registered.
22. Perusal of clause 3 of section 13 of Information Technology Act shows that the place of receipt of a document sent through electronic mode (including email) shall be place of the business of the company receiving it. In CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 11/15 the present case, plaintiff has its registered office in Delhi and therefore, in view of the abovementioned provision, the invoices shall be deemed to be dispatched through the registered office of the plaintiff, which is well within the jurisdiction of this Court.
23. Therefore, clearly the entire transactions which admittedly took place through electronic mails are deemed to be dispatched from Delhi only and thus, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO.3 Whether the plaintiff is entitled to recovery of suit amount of Rs.1,52,568/ from the defendant? If yes, whether the plaintiff is entitled to any interest and at what rate? OPP.
24. The onus to prove this issue lies upon the plaintiff. Plaintiff has filed the present suit for recovery against the defendant stating that a software, namely, Broad Vision Quick Silver version 3.6 for windows was supplied to the defendant and invoice dated 13.09.2012 was raised. However, defendant has failed to make the payment within 10 days as agreed between the parties. It is contended by the plaintiff that the defendant requested the plaintiff to supply the software on an extremely urgent basis as the defendant company required the same immediately to serve one of the defendant's customer. Therefore, in response to the request of the defendant, plaintiff company supplied a trial version of the software to the defendant on the precondition that the defendant CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 12/15 will purchase the license software.
25. Perusal of the record shows that it is admitted by the defendant that trial version was supplied by the plaintiff on precondition of purchase of the licensed software and moreover, in view of the findings of issue no.1, it has also been proved on record that the license software alongwith its license key was also delivered to the defendant by the plaintiff. Plaintiff has also proved the quotation dated 07.9.2012 which was sent to the defendant and the said quotation was duly accepted by the defendant and vide email dated 09.09.2012 and a purchase order of the even date was also placed upon the plaintiff. After the placing of purchase order dated 09.09.2012 and plaintiff consequently supplying the license software makes a binding contract between the parties. Accordingly, as per the terms of the invoice dated 13.09.2012, defendant was required to release the payment within ten days of the supply of the product and moreover, defendant has never challenged the said invoice. Also, the perusal of the emails placed on record by the defendant shows that on 29.10.2012, that is, after two months of the delivery of the software, defendant had informed the plaintiff about the cancellation of the purchase order. Moreover, neither the emails placed on record by the defendant are supported with an certificate u/s 65 B of Indian Evidence Act nor the same were duly proved by the defendant by examining the defendant or any other witness.
26. In the present case, clearly defendant has admitted the pre condition of purchasing of the license software, the delivery of the license software as well as the invoice raised by the plaintiff dated 13.09.2012. The CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 13/15 invoices in question would therefore fall within the category of the written contract and section 41 and 42 of the Sales of Goods Act will apply on the said terms. As per the mandate of section 41 of Sales of Goods Act, the defendant not having inspected the goods in question prior to delivery, had a right to inspect the same on delivery and report the defects within a reasonable time of delivery. If not rejected within reasonable time, mandate of section 42 stipulates that the defendant would be deemed to have accepted the goods.
27. Undisputeably, the license software was supplied to the defendant on 07.09.2012 and the invoice raised on 13.09.2012. Defendant, on receipt of the software, did not indicate to the plaintiff that the software was not found suitable or compatible at best until 29.10.2012 as per the email annexed with the written statement, which cannot be said as a reasonable period of time considering the fact that the defendant was using the software in the form of a trial version since 07.09.2012. Moreover, defendant is unable to prove even the email dated 29.10.2012 vide which he has informed the plaintiff that the purchase order has been cancelled and it cannot be read in evidence. Therefore, in these circumstances, it cannot be said that the defendant had ever rejected the goods or had cancelled the purchase order. Therefore, plaintiff is entitled to recover the amount of the invoice from the defendant.
28. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 14/15 RELIEF
29. Consequent to the findings on above issues, this Court is of the considered opinion that the suit of the plaintiff is liable to be decreed to the extent of Rs.1,52,568/ (Rupees One Lac Fifty Two Thousand Five Hundred and Sixty Eight only) along with pendente lite and future interest at the rate 9% per annum from the date of institution till its actual realization alongwith costs against the defendant.
30. Decree sheet be drawn accordingly. File be consigned to the record room after due indexing, pagination and completion.
Announced in the open Court (Nupur Gupta)
on 10.09.2018 Civil JudgeI, New Delhi District
New Delhi
The judgment contains pages 1 to 15
all checked and signed by me.
CS No.56887/16 TechTree IT Systems Pvt. Ltd. Vs Global Tech Publishing 15/15