Delhi District Court
Curatenie Techno Solutions India Pvt. ... vs Htl Aircon Pvt. Ltd. Company on 23 April, 2025
IN THE COURT OF SH. NARESH KUMAR MALHOTRA :
DISTRICT JUDGE (COMMERCIAL)-06
TIS HAZARI COURTS, WEST: DELHI
CS (COMM) No. 608/2024
CNR No. DLWT010060592024
23.04.2025
Curatenie Techno Solutions India Pvt. Ltd.
Through Managing Director
Office At:
C 57, Upper Ground Floor,
Street No. 1/5, Bhajanpura,
New Delhi.
.....Plaintiff
Vs.
Htl Aircon Pvt. Ltd. Company
Through Managing Director
Head Office At:
Wh-111, 1st Block-B,
Mayapuri Industrial Area, Phase-I,
Mayapuri, Delhi-64
Also At:
38 Nand Ghanshyam, Industrial Estates
Behind Paper Box, Next to Sum Pharma Office
Mahakali Caves Road, Andheri Mumbai (Maharashtra)
....Defendant.
Date of filing : 16.07.2024
Date of arguments : 23.04.2025
Date of judgment : 23.04.2025
SUIT FOR RECOVERY OF Rs. 10,64,832/- ALONGWITH
PENDENTELITE AND FUTURE INTEREST.
JUDGMENT:
1. Vide this judgment, I am deciding the suit for recovery of Rs. 10,64,832/- along with Pendentelite and future interest filed by the plaintiff against the defendant.
CS (Comm.) No. 608/2024 -1-2. In the plaint, it is mentioned that the defendant is a private limited company and deals in installation of Air Conditioners. The plaintiff is a reputed private limited company engaged in manufacturing of bipolar ionizer. It is mentioned that in the month of September 2022, the plaintiff has received a telephonic enquiry from defendant company for installation of bipolar ionizer at SSB Hospital Faridabad, Haryana. The plaintiff company has asked for the HVAC schedule for the exact quote. On 9.09.2022 plaintiff company has received HVAC drawing from Mr. Izharuddin through email. After negotiations the rates were fixed on 12.09.2022. Plaintiff has submitted its first quote of Rs. 26,43,900/- plus 18% GST over mail. The defendant had demanded material vide two purchase orders dated 30.12.2022 bearing no. 273 & 274 and defendant had asked for delivery on very next day i.e. 31.12.2023. The defendant has requested the plaintiff that after getting the delivery of the ordered material, it will hand over the post dated cheques to the plaintiff within 30 days. As per assurance, the ordered material has been delivered on 31.12.2022 and the defendant company requested the plaintiff company to collect post dated cheques on 02.01.2023 as all staffs were busy in new year's function. The plaintiff company kept waiting for post dated cheques but the plaintiff company could not get the post dated cheques. On 04.01.2023 plaintiff received a telephonic call from HTL site in charge and he asked the plaintiff to visit the site to show the product performance. The plaintiff's employee had visited the site but no employee of the defendant met the representative of the plaintiff. The plaintiff again visited the site on 11.01.2023 and performed the demo. The defendant was satisfied with the demo given by the plaintiff.
CS (Comm.) No. 608/2024 -2-Plaintiff has also submitted the hard copy of report to HTL office on 12.01.2023. As per the plaintiff, it was regularly following up with the defendant to make the payment. The plaintiff has written email dated 24.02.2023, 04.04.2023 & 01.08.2023 to HTL director Mr. Bhupinder and Delhi head office. The plaintiff also regularly visited the defendant company since 01.01.2023 but defendant has not made the payment. The plaintiff has sent notice dated 09.08.2023 to the defendant. Plaintiff has also sent notice to one of the Director of defendant's company Mr. Bhupinder Duggal and Delhi Head Mr. Ashish through email and Whatsapp. It is mentioned that plaintiff has sent legal notice dated 19.11.2023 to the defendant through his counsel and requested to return the amount along with interest @ 18% within 15 days from the date of receipt of notice. The notice was duly served but defendant neither replied nor paid the amount. The plaintiff has filed application for pre-litigation under Section 12A of the Commercial Courts Act before the West District DLSA but despite receipt of notice defendant did not appear and non- starter report was issued. It is prayed by the plaintiff to pass a decree of Rs. 10,64,832/- in favour of plaintiff and against the defendant. Plaintiff has also claimed pendentelite and future interest @ 24% per annum till realization.
3. Notice of the suit was sent to the defendant. Defendant has filed written statement taking preliminary objections that suit is not legally maintainable, as it has not been filed, verified or signed by a competent person. The plaintiff is a company and Mr. Vikram Singh Rathore is the Managing Director of the plaintiff company. No document has been placed on record by CS (Comm.) No. 608/2024 -3- the plaintiff authorizing Mr. Vikram Singh Rathore to represent the plaintiff. The plaintiff in the affidavit has averred that Mr. Vikram Singh Rathore is partner in the plaintiff's firm. The present suit is not filed by duly authorized person. Plaintiff has not signed on each page of the plaint. Plaintiff has suppressed the material facts. Plaintiff has not mentioned in the plaint as to why and for what purpose plaintiff has filed the present suit. Plaintiff has not even make it clear as to when the work order for Rs. 26,43,900/- was confirmed and why the plaintiff has filed the claim for Rs. 10,64,832/- only. The plaintiff in the plaint has clearly mentioned that it has sent a legal notice dated 19.11.2023 to the defendant through his counsel and requested to return the loan amount along with 18% interest within 15 days from the receipt of the notice.
In reply on merits, para no. 1 of the plaint is admitted. The para no. 2 of the plaint is partly admitted that plaintiff is a company engaged in manufacturing of Bipolar Ionizer. It is denied that in the month of September 2022, plaintiff has received a telephonic enquiry from defendant company for installation of bipolar ionizer at SSB Hospital Faridabad, Haryana. It is denied that plaintiff company has asked for the HVAC schedule for the exact quote. It is mentioned that defendant has work contract with SSB Hospital Faridabad, Haryana. The plaintiff has approached the defendant for the work of installation of bipolar ionizer as plaintiff is engaged in manufacturing of the bipolar ionizer. It is admitted that defendant has issued two purchase order vide purchase order no. 273 & 274 to the plaintiff for commissioning of Air Purification systems in the specified areas where AHU/VRF/FCU/Cassette/ CS (Comm.) No. 608/2024 -4- Hi-Wall/Duct able units etc are installed, so as to improve indoor air quality by using self cleaning needlepoint Ionizer made of Carbon brush emitters. The plaintiff has not supplied the material nor performed the task assigned to it. Plaintiff has intentionally did not place on record purchase order no. 273 & 274 on the record. Plaintiff has filed the present suit for recovery of Rs. 10,64,832/- without any basis. It is denied that defendant has to hand over PDC cheque. As per defendant, plaintiff has failed to discharge its work and due to the conduct of the plaintiff SSB Hospital, Faridabad did not release the payment to the defendant. It is denied that plaintiff ever visited the site. As per the defendant the payment was to be made after completion of work and no work was completed by the plaintiff. It is denied that any email was written by the plaintiff to the Director of the defendant and also to Delhi Head Office. It is mentioned that once the order worth Rs. 26,43,900/- has been confirmed then why plaintiff has filed the present suit for recovery of Rs. 10,64,832/- only. It is mentioned that due to act of the plaintiff, defendant has suffered losses. It is denied that plaintiff has sent legal notice dated 19.11.2023. Other averments of the plaint are denied. Dismissal of suit is prayed by the defendant.
4. The plaintiff has not filed replication.
5. On the basis of pleadings of the parties, following issues were framed by this Court on 27.11.2024, which are as under:-
1) Whether plaintiff is entitled for recovery of Rs.
10,64,832/- from the defendant ? (OPP) CS (Comm.) No. 608/2024 -5-
2) Whether the plaintiff is entitled to interest on the amount of Rs. 10,64,832/-. If yes at what rate and for what period ? (OPP)
3) Relief.
6. In evidence plaintiff has examined Sh. Vikram Singh Rathore, Manager Director of plaintiff as PW-1. This witness has filed affidavit on the lines of plaint. This witness has proved the copy of Registrations with ROC and MSME (Udhyam as Ex. PW1/A (colly), copy of Tax Invoice as Ex. PW1/B, copy of E- way bill as Ex. PW1/C and Non starter report as Ex. PW1/D. This witness is duly cross examined by Ld. Counsel for defendant. In cross examination, this witness has stated that Plaintiff is a private limited company. This witness has admitted that he has not filed any Board Resolution of the plaintiff company authorising him to file the present suit and depose on its behalf. He stated that the plaint bears his signatures. He has admitted that there is no stamp of the plaintiff company on Ex. PW1/A. This witness has stated that he has signed digitally on Ex. PW1/B at point A. He has admitted that there is no receiving of the defendant on Ex. PW1/B. He has stated that the plaintiff had supplied material to the defendant. He has admitted that in para no.10 of the plaint, it is mentioned that "the plaintiff has sent legal notice dated 19.11.2023 to the defendant through his counsel and requested to return the loan amount along with 18% interest within 15 days from the receipt of the notice" . He has stated that it is a typographical mistake. He has admitted that he had mentioned in para no.1 of the affidavit that he is the partner of the plaintiff firm in the above noted case. He has admitted that CS (Comm.) No. 608/2024 -6- defendant has issued two purchase orders to the plaintiff. He has voluntarily stated that the defendant has issued two purchase orders. He has stated that one purchase order amounting to Rs. 10,64,832/- was issued by the defendant and other purchase order amounting to approximately Rs. 09 lakh was also issued by the defendant. He has stated that defendant has received the material of first purchase order amounting to Rs. 10,64,832/-. He has stated that the defendant has not received the material of purchase order amounting to Rs. 09 lakh and also did not make the payment of material of first purchase order. This witness has admitted that he had not placed on record the purchase order issued by the defendant amounting to Rs. 10,64,832/-. He has admitted that the purchase order is for the supply of material as well as for installation of testing and commissioning of Air Purification System. This witness has stated that it was specifically mentioned in the purchase order that the defendant will supply post dated cheques to plaintiff and thereafter, the project will be commissioned. He has voluntarily stated that the defendant had not given any PDC to plaintiff so installation of the material supplied did not take place. This witness has stated that he had also done demo for the performance of the product at the site of the defendant and also sent the commissioning report. This witness has admitted that he had not filed the commissioning report on record. This witness has admitted both the purchase orders i.e. Ex. PW1/DX1 and Ex. PW1/DX2 and it is also admitted that both these purchase orders were sent by the defendant. This witness has admitted that he had supplied certificate to the defendant as per purchase orders.
CS (Comm.) No. 608/2024 -7-7. On the other hand, defendant has examined Sh. Jay Parekh, AR of the defendant as DW-1. This witness has filed affidavit on the lines of written statement. This witness has proved copy of Board Resolution dated 12.08.2024 as Ex. DW1/1, copy of purchase order No. 273 which is already exhibited in the statement of PW1 as Ex. PW1/DX1 and copy of purchase No. 274 which is already exhibited in the statement of PW1 as Ex. PW1/DX2.
This witness is duly cross examined by Ld. Counsel for plaintiff. During cross examination, this witness has stated that Affidavit Ex. DW1/A bears his signatures at point A and B. he has admitted that Ex. PW1/DX1 and Ex. PW1/DX2 were issued by the defendant company. He has admitted that as per Ex. PW1/DX1 and Ex. PW1/DX2 defendant has received goods amounting to Rs. 10 lakhs from the plaintiff. He has voluntarily stated that the plaintiff has not tested the goods nor installed the goods at the premises of the defendant. He has admitted that as per purchase orders Ex. PW1/DX1 and Ex. PW1/DX2, the defendant has not given any cheque within 30 days of the issuance of purchase orders. He has admitted that even after receiving of goods, the defendant has not given any cheque or made any payment to the plaintiff. He has voluntarily stated that the plaintiff has not installed the goods at the premises of the defendant so no payment was made to the plaintiff. This witness has admitted that he has received the goods in respect of purchase order Ex. PW1/DX1. This witness has admitted that he had not made any complaint to the plaintiff regarding non receiving of the goods in respect of purchase order Ex. PW1/DX-2. He has admitted that there is penalty clause at point CS (Comm.) No. 608/2024 -8- A on Ex. PW1/DX1 and Ex. PW1/DX2. He has admitted that defendant has not sent any notice to recover the penalty to the plaintiff. This witness has stated that he cannot admit or deny if he had sent any notice to the plaintiff regarding with holding of his payment by his client. This witness has again stated that he had intimated the plaintiff verbally but he cannot tell if any written notice was given to the plaintiff in this regard. This witness has stated that he cannot tell without seeing the record if he had given any notice when his contract was terminated by S.S.B. Hospital Faridabad. This witness has voluntarily stated that he had intimated orally/verbally to the plaintiff. This witness has admitted that he has to supply /instal, testing and commissioning of Heating Ventilation Air conditioning System. He has stated that plaintiff had 10 to 15% role in completing the principal task with SSB Hospital, Faridabad. He has stated that the work of the plaintiff was integral part of the project at SSB Hospital and he has to maintain proper ventilation and indoor air quality at SSB Hospital, Faridabad. This witness has stated that the installation of device by the plaintiff was important to get the desired result of proper ventilation and proper indoor air quality at SSB Hospital, Faridabad. He has admitted that one demo was sent by the plaintiff to defendant as well as to the SSB Hospital. He has voluntarily stated that the demo was rejected by the SSB Hospital.
8. I have heard Ld. Counsels for both the parties at length and perused the record carefully.
9. My issue-wise findings are as under:-
CS (Comm.) No. 608/2024 -9-10. Issue No. 1- Whether plaintiff is entitled for recovery of Rs. 10,64,832/- from the defendant ? (OPP)
11. At the very Outset, I may observe that the provisions of Section 2 (1) (c)(xviii) of Commercial Courts Act, 2015 are very clear which reads as under:-
(c) "commercial dispute" means a dispute arising out of-
(i) ordinary transactions of merchants, bankers, financiers and traders such as those relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import of merchandise or services;
(iii) issues relating to admiralty and maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipments and helicopters, including sales, leasing and financing of the same;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce.
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreement;
(xii) shareholders agreements;
(xiii) subscription and investment agreements pertaining to the services industry including outsourcing services and financial services;
(xiv) mercantile agency and mercantile usage;
(xv)partnership agreements;
(xvi) technology development agreements; (xvii) intellectual property rights relating to registered and unregistered trademarks, copyright, patent, design, domain names, geographical indications and semiconductor integrated circuits; (xviii) agreement for sale of goods or provision of services;CS (Comm.) No. 608/2024 -10-
(xix) exploitation of oil and gas reserves or other natural resources including electromagnetic spectrum; (xx) insurance and re-insurance;
(xxi) contracts of agency relating to any of the above; and (xxii) such other commercial disputes as may be notified by the Central Government.
12. The provisions of Section 2 (1) (c) (xviii) of Commercial Courts Act as above are very much clear. Sale of goods are governed by Sale of Goods Act, they pertain to movable properties, any dispute of sale or agreement to sale of goods of specified value do come within the jurisdiction of Commercial Courts Act. The clause also includes the services and guarantee given for the goods sold. The service or guarantee may be oral or written. Therefore, the facts which alleged in the plaint comes under the Commercial disputes.
13. Secondly, now the question arises whether this Court has the pecuniary jurisdiction to adjudicate the matter which is dispute. In this regard, the provisions of Section 3 of Commercial Courts Act, 2015 provides that:
Section 3 : Constitution of Commercial Courts:
(1) The State Government, may after consultation with the concerned High Court, by notification, constitute such number of Commercial Courts at District level, as it may deem necessary for the purpose of exercising the jurisdiction and powers conferred on those Courts under this Act:
[Provided that with respect to the High Courts having ordinary original civil jurisdiction, the State Government may, after consultation with the concerned High Court, by notification, constitute Commercial Courts at the District Judge level:CS (Comm.) No. 608/2024 -11-
Provided further that with respect to a territory over which the High Courts have ordinary original civil jurisdiction, the State Government may, by notification, specify such pecuniary value which shall not be less than three lakh rupees and not more than the pecuniary jurisdiction exercisable by the District Courts, as it may consider necessary. ] 3[1A) Notwithstanding anything contained in this Act, the State Government may, after consultation with the concerned High Court, by notification, specify such pecuniary value which shall not be less than three lakh rupees or such higher value, for whole or part of the State, as it may consider necessary.]
14. Admittedly, the Commercial Court Act was amended on 03.05.2018 and by virtue of the amendment and by virtue of the notification, the pecuniary value of the Commercial Courts Act shall not be less than Rs. 3,00,000/-. In the present case, the claim amount which is shown in the plaint is of Rs. 10,64,832/-. So, commercial court has jurisdiction to try and entertain the present suit.
15. The burden to prove this issue is upon the plaintiff. To prove this issue, the plaintiff has examined Sh. Vikram Singh Rathore, Manager Director of plaintiff as PW-1. This witness has filed affidavit on the lines of plaint. This witness has proved the copy of Registrations with ROC and MSME (Udhyam as Ex. PW1/A (colly), copy of Tax Invoice as Ex. PW1/B, copy of E- way bill as Ex. PW1/C and Non starter report as Ex. PW1/D.
16. Admittedly, as per memo of parties, the plaintiff is a private limited company. The present suit has been filed by Sh.
CS (Comm.) No. 608/2024 -12-Vikram Singh Rathore being Managing Director of the plaintiff company. Sh. Vikram Singh Rathore has not placed on record any document to show that he has authority to file the present suit on behalf of plaintiff company. Sh. Vikram Singh Rathore has not filed any Board Resolution or any letter to show that he has authority to depose on behalf of plaintiff company. In the affidavit annexed with the plaintiff Sh. Vikram Singh Rathore has mentioned himself as one of the partner of of the plaintiff firm but no partnership deed is placed on record to show that plaintiff is a partnership firm. From the memo of parties, it is clear that plaintiff is a company and not a partnership firm and Sh. Vikram Singh Rathore cannot be considered as partner of the firm. Sh. Vikram Singh Rathore has not placed on record any authority letter or any Board Resolution to prove that plaintiff company has authorized him to file the present suit. Sh. Vikram Singh Rathore has not mentioned in plaint in what capacity he has filed the present suit. PW-1 has admitted during cross examination that he has not filed any Board Resolution of the plaintiff company authorizing him to file the present suit and depose on its behalf. I am of the view that Sh. Vikram Singh Rathore has no authority to file the present suit.
17. Ld. Counsel for defendant has placed reliance on judgment tiled as "M/s. Nibro Limited Vs. National Insurance Co. Ltd." AIR 1991 Delhi 25 passed by Hon'ble High Court of Delhi, wherein, it is held that "It is well-settled that under Section 291 of the Companies Act except where express provision is made that the powers of a company in respect of a particular matter are to be exercised by the company in general meeting in all other CS (Comm.) No. 608/2024 -13- cases the Board of Directors are entitled to exercise all its powers. Individual directors have such powers only as are vested in them by the Memorandum and Articles. It is true that ordinarily the court will not unsuit a person on account of technicalities. However, the question of authority to institute a suit on behalf of a company is not a technical matter. It has far- reaching effects. It often affects policy and finances of the company. Thus, unless a power to institute a suit is specifically conferred on a particular director, he has no authority to institute a suit on behalf of the company. Needless to say that such a power can be conferred by the Board of Directors only by passing a resolution in that regard". Ld. Counsel for defendant has also placed reliance on judgment titled as "State Bank of Travancore Vs. M/s. Kingston Computers (I) P. Ltd." CA No. 214/2011 passed by Hon'ble Supreme Court of India and in this judgment Hon'ble Supreme Court has also relied on judgment tiled as "M/s. Nibro Limited Vs. National Insurance Co. Ltd. ". In this judgment, it is held that " In our view, the judgment under challenge is liable to be set aside because the respondent had not produced any evidence to prove that Shri Ashok K.Shukla was appointed as a Director of the company and a resolution was passed by the Board of Directors of the company to file suit against the appellant and authorised Shri Ashok K.Shukla to do so. The letter of authority issued by Shri Raj K.Shukla, who described himself as the Chief Executive Officer of the company, was nothing but a scrap of paper because no resolution was passed by the Board of Directors delegating its powers to Shri Raj K.Shukla to authorise another person to file suit on behalf of the company".
CS (Comm.) No. 608/2024 -14-18. Section 291 of the Companies Act authorizes that Board of Director must authorize to file and institute a suit against any party for any type of relief by Resolution passed by Board of Directors in Civil Suit. Directors or some other official are authorized to file and institute the suit. In view of the provisions of Section 291 of the Companies Act, the plaintiff was required to show that Sh. Vikram Singh Rathore has authority to file the present suit. In view of the above judgments, I am of the view that present suit is not maintainable as same is not signed, verified and filed by a competent person. The plaintiff is a private limited company and Sh. Vikram Singh Rathore, who claim himself to be Managing Director has not placed on record any Board Resolution passed by the Directors of plaintiff company. Accordingly, without proper authorization Sh. Vikram Singh Rathore is not authorized and competent person to file the present suit. I am of the view that Sh. Vikram Singh Rathore being Managing Director without any authorization of Board of director cannot filed suit for recovery against the defendant.
19. Now, the question arises whether PW-1 is able to prove averments made in the plaint. Sh. Vikram Singh Rathore appeared as PW-1 and filed affidavit on the lines of plaint. This witness has admitted during cross examination that he has not fled an Board Resolution of the plaintiff company authorizing him to file the present suit and depose on its behalf. As PW-1 in clear terms admitted that no Board of Resolution has been placed on record by him. I am of the view that averments made in the plaint are not proved as PW-1 has no competency to depose on CS (Comm.) No. 608/2024 -15- behalf of plaintiff company. The plaintiff is not able to prove issue no. 1 and accordingly, this issue is decided in favour of the defendant and against the plaintiff.
20. Issue No. 2- Whether the plaintiff is entitled to interest on the amount of Rs. 10,64,832/-. If yes at what rate and for what period ? (OPP) As, I have decided issue no. 1 in favour of defendant and against the plaintiff, this issue is also decided in favour of the defendant and against the plaintiff.
21. RELIEF:
In view of the above discussions, the suit filed by the plaintiff is dismissed with no order as to cost. Decree sheet be prepared accordingly. File be consigned to record room, after necessary compliance.
Announced in the (NARESH KUMAR MALHOTRA)
open court on 23.04.2025 District Judge, Comm. Court-06
West, Tis Hazari Courts
Extension Block, Delhi/23.04.2025
Digitally
signed by
NARESH
NARESH KUMAR
KUMAR MALHOTRA
MALHOTRA Date:
2025.04.23
16:46:10
+0530
CS (Comm.) No. 608/2024 -16-