Final Order 2

Order Details: Copy of Judgment
Pdf Text: Comm.Suit No. 133/19. 1 Judgment (Exh.40).
MHCC010078452019
Presented on : 26072019
Registered on : 25092019
Decided on : 23122021
Duration : Y2, M4, D28
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 133 OF 2019
Exh.40.
Saloni Rahul Chandalia, an adult )
aged 30 years, carrying on business )
in 3D printers and filaments in the )
name & style of M/s. Ubercool Gifting )
Solutions, as a sole propritrix at Yogi )
House, 189, Anand Estate, N.M. Joshi Marg, )
Chinchpokali (W), Mumbai400 011 )...Plaintiff
Versus
1. Reddx Technologies Pvt. Ltd. )
a limited company having registered )
office at AL/36/59, 4th Street, )
12th Main Road, Anna Nagar, )
Chennai600 040 )
2. Surendranath Reddy, an adult, )
age not known, Director of Reddx )
Technologies Pvt. Ltd. )
having address No. 2/39A, Murugan )
Nagar, 5th Street, Kolathur, )
Chennai 600099 (TN) )
3. Yerasi Padmavathi, an adult, )
age not known, Director of Reddx )
Technologies Pvt. Ltd. )
having address No. 2/39A, Murugan )
Nagar, 5th Street, Kolathur, )
Chennai 600099 (TN) )...Defendants
-- 1 of 14 --
Comm.Suit No. 133/19. 2 Judgment (Exh.40).
SUIT FOR RECOVERY OF MONEY
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(C.R.NO.31).
DATE : 23rd DECEMBER, 2021.
Shri Lalit Jain a/w Ms. Rutuja Mahadik, Advocate for the plaintiff.
Shri Chirag Mehta a/w Ms. Poornima Mehta, Advocate for the
defendants.
JUDGMENT
1. This is a suit for recovery of money.
2. Case of the plaintiff, in brief, is as under :
The plaintiff is a proprietrix of M/s. Ubercool Gifting
Solutions and carrying on business in lights and electrical goods.
Defendant no.1 is a private limited company. Defendants no.2 and 3
are the Directors of defendant no.1. Pursuant to the telephonic orders
placed by the defendants, the plaintiff sold and delivered 3D Printers
and filaments to the defendants from time to time. Amount of
Rs.5,14,258/ was due and payable to the plaintiff by the defendants as
per five invoices raised during 29/07/2017 to 06/01/2018 mentioned
in para 3 of the plaint. The defendants admitted the delivery of the said
goods and they agreed to pay the interest at the rate of 21% p.a. as per
terms in the invoices after credit period of 30 days from the date of
invoices. The goods were delivered to the defendants through Anjani
Courier Services (P) Ltd. as per four consignment notes during
31/07/2017 to 06/01/2018.
3. The defendants made part payment of Rs.2,00,000/ on
-- 2 of 14 --
Comm.Suit No. 133/19. 3 Judgment (Exh.40).
28/11/2017 leaving behind Rs.3,14,141/ plus Rs.1,34,927/ being the
'C' Form amount (total Rs.4,49,068/). As the defendants failed and
neglected to pay the balance amount with interest, the plaintiff's
advocate issued letter dated 03/01/2019 to the defendants making
demand of the outstanding amount. The defendants received the notice
on 12/01/2019, but they did not pay the due amount. Hence, the
plaintiff filed the suit for balance amount of Rs.4,49,068/ with interest
of Rs.1,06,238/ at the rate of 18% p.a. after the credit of 30 days from
the date of the invoices till 31/07/2019 (total Rs.5,55,306/). The
plaintiff has claimed further interest on balance amount of
Rs.4,49,068/ at the rate of 18% p.a. from the date of the suit till its
realization with costs of the suit.
4. The defendants have filed written statement (Exh.8) in
which they have pleaded as under :
The defendants have denied liability to pay sum of
Rs.5,14,258/ to the plaintiff under the invoices. They further denied
the receipt of invoices and delivery of goods. They also denied liability
to pay interest at the rate of 21% p.a. as per terms in the invoices after
the credit of 30 days from the date of invoices. The defendants further
denied that the plaintiff is engaged in business of M/s. Ubercool Gifting
Solutions. They further denied that M/s. Ubercool Gifting Solutions is a
proprietary concern, partnership firm or having any legal entity under
the Companies Act. After denying the liability, the defendants put forth
their case that there was no MOU signed by both parties and the
defendants had not agreed for any interest rate on delayed payments.
5. Consignments dated 29/11/2017 and 06/01/2018 are not
having the address of the defendants. GST numbers does not belong to
-- 3 of 14 --
Comm.Suit No. 133/19. 4 Judgment (Exh.40).
the defendants. Consignments are not supported by Eway challans. In
normal course of business, the items are sent directly to the client and
not to the defendants. The defendants had not received invoices on
many occasions and the same are then requested to be sent via email
as a scanned copy many times. Mapping of payments are done by
WOL3D against invoices in random and not against the items mapped
in accounting. Therefore, it is normally expected that there will be
discrepancies on both sides.
6. They further pleaded that the plaintiff has no locus standi to
file the present suit without any documentary evidence to show that the
defendants are having any legal obligation and transaction with the
plaintiff. As the proceeding before the competent authority against
defendant no.1 is initiated under the Insolvency and Bankruptcy Code,
2016, the present suit is bad in law and not maintainable. The plaintiff
has suppressed the material facts. The defendants responded the notice
sent by the plaintiff by way of their reply dated 28/01/2019. It is case
of the defendants that they had requested WOL to remove the contents
copied from 3Ding website and WOL refused to remove stating
payments as a reason for nonremoval of contents. They used copied
website content and images for a period more than a year and
threatened the defendants about using the customer data for creating a
bad image of the defendants. This statement is made by WOL in an e
mail. The plaintiff indulged in an illegal act of copyright violation and
unfair business practices. The plaintiff copied the website of the
defendants in respect of layouts, style, subtexts, all texts, images,
designs and CSS and she failed to remove the contents inspite of several
communications and conversations. This suit is filed for extorting
money from the defendants. WOL and the defendants disconnected the
-- 4 of 14 --
Comm.Suit No. 133/19. 5 Judgment (Exh.40).
business due to conflict which puts 3Ding responsible for providing
warranty, after sales services and support to the items sold. By putting
forth this defence version, the defendants prayed for dismissal of the
suit with compensatory costs.
7. My learned predecessor framed issues at Exh.9 on
16/02/2021. Then, case management hearing was conducted and
schedule of trial (Exh.25) was determined on 12/08/2021. Plaintiff
Saloni had already filed her evidence affidavit as PW 1 at Exh.10.
(Plaintiff’s Witness). She had also filed evidence affidavit of PW 2 Rahul
(Exh.18). Crossexamination of PW 1 Saloni and PW 2 Rahul is
conducted by learned counsel Poornima Mehta for the defendants. The
plaintiff closed evidence vide pursis (Exh.33).
8. Similarly, the defendants filed two evidence affidavits of
defendant no.2 Surendranath Reddy as DW 1 and DW 2 at Exh.19 and
21 (Defendants’ Witness) as a representative of defendant no.1
company and in the capacity of the Director respectively. Evidence
affidavit of DW 3 Yerasi, defendant no.3 is filed at Exh.23. Cross
examination of DW 1 Surendranath (Exh.19) is conducted by learned
counsel Shri Lalit Jain for the plaintiff. The defendants closed evidence
vide pursis (Exh.38) without examining DW 3 Yerasi.
9. Heard learned counsel Shri Lalit Jain for the plaintiff and
learned counsel Shri Chirag Mehta for the defendants. I have also gone
through written notes of arguments (Exh.39) filed by learned counsel
Shri Chirag Mehta for the defendants.
Learned counsel Shri Lalit Jain for the plaintiff advanced
-- 5 of 14 --
Comm.Suit No. 133/19. 6 Judgment (Exh.40).
arguments as under :
10. Delivery of goods is made as per invoices and
consignments. The defendants have already made part payment of
Rs.2,00,000/ on 28/11/2017. If the goods were not sold, the
defendants would not have made part payment. It shows that the
plaintiff and the defendant were engaged in some business. As the part
payment is made on 28/11/2017 and the suit is filed on 26/07/2019, it
is within limitation. The plaintiff had sent the notice dated 03/01/2019
and demanded price of goods with accrued interest. The defendants
disputed locus standi to file the suit, but no petition filed as per the
provisions of the Insolvency and Bankruptcy Code, 2016 (for short 'the
IB Code'). Invoices are addressed to the defendants, but shipping has
been done to the clients on request of the defendants. The defendants
have admitted procedure of sending goods to the customers in para 8 of
the evidence affidavit (Exh.19) and it is sufficient to show that the
goods were forwarded to the clients on the request of the defendants.
Payment term is 'Immediate' and there is clause of 21% p.a. interest in
case of payment after due date in the invoices. No MOU is executed
between the parties.
11. As the plaintiff is a proprietary concern, name of the
proprietor is mentioned in the beginning. Authority is not required for
signing each and every invoice and signature of PW 2 Rahul on one of
the invoices is justified. As the plaintiff has sold something to the
defendants, they have given suggestion to the plaintiff's witnesses about
sale and services. While raising the issue of losses on the count of
copying contents from the website of the defendants by the plaintiff, no
counter claim is made by the defendants. He further referred various e
mails in Exh.28 in which the defendants admitted outstanding amount
-- 6 of 14 --
Comm.Suit No. 133/19. 7 Judgment (Exh.40).
of Rs.3.5 Lakhs. In reply notice dated 25/09/2018 (Exh.31), it is
admitted by the defendants that the plaintiff and the defendants had
entered into an oral agreement dated 31/01/2017 for supply of
FlashForge 3D Printers and Filaments. The defendants further admitted
in para 6 of the reply notice (Exh.31) services provided by the plaintiff
to the extent of invoice amount. Similarly, there is reference of
honouring the invoices in para 10 of the reply notice (Exh.31) on
complying requisitions in para 9 of the said reply notice. In short, the
defendants have admitted liability to make payment in respect of
invoices. In crossexamination of PW 1 Saloni, dispute regarding
services is raised and delivery of goods is not disputed. Emails, notices
and crossexamination of DW 1 Surendranath have sufficient
admissions regarding the transaction. No litigation is initiated by the
defendants in respect of their defence of copying contents of their
website by the plaintiff. Hence, the suit may be decreed with costs.
Learned counsel Shri Chirag Mehta for the defendants
pointed out contents in written notes of arguments (Exh39) and
argued his case as under:
12. Plaintiff Saloni has not made M/s. Ubercool Gifting
Solutions as a party to the suit. PW 2 Rahul is the husband of the
plaintiff who has no power of attorney. There is no document to show
that he has authority to act on behalf of the plaintiff. No salary slip etc.
is filed to show that Rahul is employee of the plaintiff's firm. In cross
examination, Pw 1 Saloni has admitted that she has no knowledge of
the transaction and she does not know the amount to be recovered. No
document has been placed on record to show status of the plaintiff firm.
13. One invoice is signed by Rahul. Round seal is absent on all
-- 7 of 14 --
Comm.Suit No. 133/19. 8 Judgment (Exh.40).
invoices. The plaintiff and the defendants had transactions of
Rs.40,00,000/, but the goods in the invoices have not been delivered.
There is no reference of the invoices in email communication between
the parties. Eway challans are not filed. As the plaintiff copied
contents from the defendants' website, they sustained heavy losses. The
defendants will initiate separate litigation against the plaintiff in respect
of infringement of copyrights. Defendant no.3 is made party
unnecessarily. There is no agreement to grant 18% interest. The
plaintiff sold goods at lesser price. The plaintiff sent notice (Exh.29)
under the IB Code, but no action is taken as per provisions of the IB
Code. As delivery of goods has not been made, amount is not due and
payable. There is no question of immediate payment. No proof is
available to show that the defendants had requested the plaintiff to
make delivery of goods to the clients. 'C' Form amount of Rs.1,40,000/
is claimed, but no document is filed. It is not mentioned that
Rs.2,00,000/ were paid in respect of the same transaction. Copying
website is an unethical and an illegal act. Hence, the suit is liable to be
dismissed with compensatory costs.
14. My learned predecessor had framed issues at Exh.9 and I
reproduce the same and record the findings against them for reasons to
follow :
SR.NO. ISSUES FINDINGS
1. Whether the plaintiff proves that
she had sold and delivered 3D
printers and filaments to the
defendants?
In the affirmative.
2. Whether the plaintiff proves that
the Defendants are liable to pay
to the plaintiff a sum of
-- 8 of 14 --
Comm.Suit No. 133/19. 9 Judgment (Exh.40).
Rs.5,14,250/ alongwith the
interest @ 18% p.a.?
In the affirmative.
3. Does the plaintiff proves that the
suit is maintainable after
initiation of liquidation
proceedings against defendants
under Insolvency and
Bankruptcy Code, 2016 ?
Does not survive.
4. What order and decree ? Suit is decreed.
REASONS
AS TO ISSUES NO.1 To 3 :
15. In order to prove the claim, PW 1 Saloni has deposed in her
evidence affidavit (Exh.10) that she sold 3D printers and filaments as
per five invoices (Exh.12 colly.) worth Rs.5,14,258/ and goods were
sent as per the instructions of the defendants through Anjana Courier
Services (P) Ltd. at various locations as per the address given by the
defendants. She proved consignment notes (Exh.13). She has further
deposed that she received part payment of Rs.2,00,000/ on
28/11/2017 and the defendants failed and neglected to pay the balance
amount together with interest. She stated about demand notice dated
03/01/2019 (Exh.15) which is delivered to the defendants as per three
acknowledgments (Exh.17). Testimony of PW 1 is supported by
evidence of her husband PW 2 Rahul (Exh.18).
16. In the course of crossexamination of PW 2 Rahul has
proved emails (Exh.26 and Exh.27). He also proved another series of
emails between the parties as Exh.28. Similarly, the notice dated
03/09/2018 sent by the plaintiff's advocate to the defendants advocate
-- 9 of 14 --
Comm.Suit No. 133/19. 10 Judgment (Exh.40).
is marked as Exh.29. He further proved the plaintiff’s notice dtd. 0301
2019 (Exh.30), reply notices of the defendants dtd. 25092018 and 28
012019 (Exh. 31 and Exh. 32 respectively).
17. On careful perusal of the plaint and written statement Exh.
8, it appears that the plaintiff has specifically pleaded receipt of part
payment of Rs. 2,00,000/ on 28112017 in para 5 of the plaint. The
defendants have not denied the aspect of part payment in entire written
statement and just proceeded to deny the liability to pay balance
amount. As the defendants have not denied the aspect of part payment,
it is liable to be treated to have been admitted as per Order VIII Rule 5
(1) of the C.P.C..
18. Similarly, the plaintiff has stated in the notice Exh. 29
about delivery of goods and balance amount of Rs. 4,49,068/ . The
defendants have given reply through their Advocate Exh. 31 in which
contentions in the notice Exh. 29 are not specifically disputed and it is
stated that the payment will be held by his client until such issue
(pertaining to the services) is resolved. Similarly, issue of coping
contents in plaintiff’s website is raised. In addition to it, the plaintiff
had sent one another notice Exh. 30 and the defendants had given reply
to the same as per Exh. 32. This exchange of the notice and reply also
contain similar stand on the part of both sides. DW1 Surendranath has
admitted in his crossexamination the plaintiff sold goods worth Rs.
40,00,000/ to the defendants. Defendant Surendranath has mentioned
dues of Rs. 3.5L in his email dtd. 30012018 (Exh. 28).
19. It is evident from above discussion that the defendants have
not disputed part payment of consideration amount or price of the
-- 10 of 14 --
Comm.Suit No. 133/19. 11 Judgment (Exh.40).
goods pleaded in the plaint. DW1 Surendranath has also admitted
business relations with the plaintiff. The defendants did not clarify the
purpose of payment of Rs. 2,00,000/ to the plaintiff. The defendants
have come forward with the case of copying contents of their website by
the plaintiff and the complaint to google through Lumen is made . The
defendants have not made counter claim in respect of losses sustained
by them due to copyright violation by the plaintiff. It is clear from
material on record that the defendants are intermingling the separate
issue with the purchase transaction between the parties in order to
withhold the payment of price of goods. All these contentions of the
defendants are not followed by necessary legal action.
20. The defendants are prevented from disputing the liability
by questioning defects in invoices and consignments notes due to
admissions in the reply notices, emails and written statement. The
defendants have not only admitted part payment but also balance
amount to be paid with rider of redressing their grievances. The
defendants are bound by their admissions by virtue of section 17 and 58
of the Evidence Act and Order VIII Rule 5 (1) of the C.P.C..The
defendants are prevented from disputing the invoices and the
consignment notes on the ground of signatures of plaintiff husband,
absence of round seal mark, etc..
21. Eway bill/challan process has become effective from 01
042018 as stated by PW – 2 Rahul. Similarly , the purchaser or the
customer has to provided CForms to the seller. For this reason, the
defendants are wrongly raising the issue of absence of Eway challans
regarding the transactions entered into between the parties prior to 01
042018. No material has been brought on record regarding furnishing
-- 11 of 14 --
Comm.Suit No. 133/19. 12 Judgment (Exh.40).
copies of CForm to the plaintiff by the defendants. Rather, the
defendants have disputed the very transaction. Therefore, contention of
the defendants on this point is not maintainable.
22. So far as question of proceedings against the defendants
under the IB Code, no material has been brought on record to
demonstrate initiation of proceeding under the provisions of the IB
Code. Record shows that the plaintiff had given the notice (Exh. 29) to
the defendants under the IB Code. Then, she issue another notice
(Exh.30) before filing the present suit. It shows that the plaintiff
preferred to approach this Court instead of resorting to the remedies
under the IB Code. For this reason, very ground for decided the 3rd issue
is not available and it has become infructuous.
23. In short, The plaintiff has substantiated her claim with the
help of oral and documentary evidence. The plaintiff is entitled to have
her suit decreed. Though the rate of interest 21% p.a. is mentioned in
invoices, the plaintiff has claim further interest @ 18% p.a. and it is
reasonable. Considering nature of transaction, costs of the suit is liable
to imposed upon the defendants. Hence, I record my findings as to
issues No. 1 and 2 in the affirmative and as to issue no. 3 as “Does not
survive”. Hence, I pass the following order :
ORDER
1. Commercial Suit No. 133/2019 is decreed.
2. The defendants are directed to pay amount of Rs.5,55,306/
(Rupees Five Lakhs Fiftyfive Thousand Three Hundred Six Only)
to the plaintiff within three months from the date of decree.
3. The defendants are further directed to pay interest at the rate of
18% p.a. on amount of Rs.4,49,068/ from the date of the suit till
-- 12 of 14 --
Comm.Suit No. 133/19. 13 Judgment (Exh.40).
realization.
4. Defendants no.1 to 3 shall be jointly and severally liable to pay
decretal amount to the plaintiff.
5. The defendants shall bear the costs of the suit.
6. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil & Sessions Court,
(Court Room No.31)
Date : 23/12/2021. Mumbai.
1. Dictated online on : 23.12.2021
2. Checked on : 27.12.2021
3. Signed on : 27.12.2021
4. Delivered to Certified :
Copy Section on
-- 13 of 14 --
Comm.Suit No. 133/19. 14 Judgment (Exh.40).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27.12.2021 at 1.05 p.m. (Mrs. K.S.Bhosale)
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 23.12.2021
Judgment/Order signed by P.O. on 27.12.2021
Judgment/Order uploaded on 27.12.2021
-- 14 of 14 --