Interim Order 1

Order Details: Other
Pdf Text: SJ No.100169 / 2023,
Netcore – Bliss
Order (Exh.7) 1 of 8
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
(Additional District Judge : Vijay S. Hingne, LL. M.)
MHCC010077492023
SJ Filed : 12.06.2023
Arguments Heard : 24.07.2024
Decided on : 24.07.2024
Duration : 01 Y, 01 M, 12 D
Exhibit No. 7
Commercial Summary Suit No. 100438 / 2022
Summons for Judgment No. 100169 / 2023
Plaintiff : M/s. Netcore Cloud Pvt. Ltd., Mumbai
VERSUS
Defendant : Bliss Inns Pvt. Ltd., New Delhi.
Appearances
Plaintiff
: Adv. Ms. Khushbu Jain
Defendant
: Adv. Shri M. A. Khan
Summons for Judgment
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ORDER
(Pronounced on this 24th Day of July, 2024)
Plaintiff has preferred Summons for Judgment.
Defendant is seeking unconditional leave to defend.
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Netcore – Bliss
Order (Exh.7) 2 of 8
Points for determination :
2) Perused record. Heard the Learned Counsels. Points for
determination, findings and reasons are as follows :
Points
Findings
1. Is plaintiff entitled for Summons
for Judgment?.............................. In the Negative.
2. Is defendant entitled for Leave to
Defend?.......................…..……... As per final order.
3. What Order? …………………… As per final order.
R E A S O N S
Case of plaintiff :
3) M/s. Netcore Cloud Pvt. Ltd., Mumbai, Maharashtra, is
registered company (hereinafter,
plaintiff), engaged in business of
providing Affiliate Marketing.
Bliss Inns Pvt. Ltd, New Delhi, is also registered
company (hereinafter,
defendant).
4) Vide Purchase Orders Dt. 22.08.2018, 16.10.2018,
25.10.2018, 31.10.2018, 02.12.2018 and 24.12.2018 (hereinafter,
Orders) defendant sought
Affiliate Marketing Services i.e. SMS,
Voice Cost and Mailer Services from plaintiff. Accordingly,
plaintiff generated Invoices of aggregate .36,10,423/-.	₹
5) Through emails Dt. 31.12.2018, 02.01.2019 and
04.02.2019, defendant, approved the services. However, it
defaulted the payment.
On 19.06.2019 and 21.01.2020, plaintiff issued Notice
under Rule 5 of Insolvency and Bankruptcy Rules.
On 22.07.2019 and 31.01.2020, defendant issued reply
stating that, it had never placed any orders. Alleged orders are
issued by Sarika Shrivastava, who is removed by defendant on
06.02.2019. Sarika had no authority to place any such orders.
Hence, on 12.08.2022, plaintiff filed Commercial
Summary Suit No. 100438 / 2022, for recovery of .36,10,423/-.	₹
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SJ No.100169 / 2023,
Netcore – Bliss
Order (Exh.7) 3 of 8
Application at Exh. 12 :
6) Plaintiff filed application at Exh. 12, U / Sec. 151 of the
CPC, contending that, defendant filed Vakilpatra through its
Director Vivek Bihani. Vivek did not filed the Leave to Defend.
Its Chief Executive Officer Aditi Balbir retired on 21.03.2023
and thereafter Leave to Defend is filed on 15.06.2023 by Aditi.
Further, defendant has not annexed any Authority Letter
or Board Resolution authorizing Aditi to file the reply. Said
Leave to Defend, being unauthorized, be strike off.
Defendant, through reply (Exh. 13) opposed application.
7) Stage of the Suit is, arguments regarding Summons for
Judgment. In that backdrop, parties are expected to raise their
contentions merely through pleadings. For that purpose, evidence
of the parties is not required.
For appreciation of pleadings, Court cannot have
technical approach. Therefore, at this stage, such objection cannot
be considered. Hence, application, deserves to be filed.
Summons for Judgment 100169 / 2023 (Exh.7, Dt. 12.06.2023) :
8) Documents filed by plaintiff are sufficient to prove the
Claim. Against it, defendant does not have any triable issue.
Hence, Summons for Judgment, be allowed and Suit be decreed.
Leave to Defend of Defendant (Exh. 9, Dt. 24.06.2023) :
9) Defendant Summons for Judgment on numerous
grounds and prayed for unconditional leave to defend :
1. Defendant is carrying business at Gurgaon. Hence, City
Civil Court, Mumbai, lacks territorial jurisdiction to
conduct the Suit.
2. Defendant never issued any emails, placing the orders
or acknowledging the debt.
3. There is no contract between plaintiff and defendant
regarding the services.
4. Alleged Orders are obtained by plaintiff from Sarika
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Netcore – Bliss
Order (Exh.7) 4 of 8
Shrivastava, who was never authorized by defendant, to
place any order with plaintiff.
5. Alleged Cause of action arose for plaintiff on
13.03.2019. Hence, Suit Dt. 12.08.2022, is time-barred.
Reasons as to Point No. 1 to No. 3 :
10) All points being interconnected, are taken for common
discussion.
Employer-Employee Relationship :
11) Plaintiff is claiming that, Sarika Shrivastava (hereinafter,
Sarika) is employee of defendant and she placed orders through
emails during 22.08.2018 to 24.12.2018.
Defendant is claiming that, Sarika was never authorized
to place any such orders. Said Sarika has already left service of
defendant on 06.02.2019.
12) By contending that,
Sarika left service on 06.02.2019,
defendant is admitting that, Sarika was its employee.
However, defendant did not clarified as to why Sarika
left the service or whether it was the defendant who terminated
her service. No such document is filed by defendant.
Alleged Orders were placed on 22.08.2018 to
24.12.2018 and thereafter, Sarika discontinued services on
06.02.2019. So, duration during which Orders were placed,
Sarika was in employment of defendant.
Sarika, being the employee of defendant, then her acts
will bind the employer i.e. defendant.
Who committed fraud :
13) Defendant is claiming that, without any authorization
from defendant, Sarika has fraudulently placed orders.
Hence, it needs deliberation, whether it is fraud
committed by
plaintiff + Sarika, to extract money from
defendant.
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Netcore – Bliss
Order (Exh.7) 5 of 8
It may also happen that, defendant after placing order
through Sarika, removed her from service, so as to subsequently
raise this ground / defense about fraud.
Hence, it also needs deliberation, whether it is fraud
committed by
defendant + Sarika, to avoid payment to plaintiff.
Orders on Letter-head of Vresorts :
14) Plaintiff claimed that, Sarika placed six Orders. Plaintiff
filed copies of this Orders at Page No. 20 to No. 28 of the Plaint.
Perusal shows that, these Orders are on the letterhead of
V-RESORTS.
15) Alleged emails, through which Orders came to be
placed, are filed by plaintiff at Page No. 35 to 43.
These emails are originating from mail IDs as
sarika.srivastava@vresorts.in, gaurav.malik@veresorts.in and
yatin.sharma@vresorts.in.
It means, Orders were placed by company from
letterhead and mail-id of
V-RESORTS.
Is V-Resort and Bliss Inns, same entity :
16) Plaintiff has filed the Suit against
Bliss Inns Pvt. Ltd.
In that backdrop, question arises as to, if Orders are
placed by V-RESORTS, then whether Bliss Inns is answerable?
Plaintiff has not disclosed relationship between
V-
RESORTS (which placed the Orders) and
Bliss Inns (defendant,
from whom plaintiff is seeking recovery).
17) It was argued by plaintiff that, V-RESORTS and Bliss
Inns are same.
Had that been the case, then plaintiff ought to have
pleaded said fact in specific words in the plaint that, these are
same companies or subsidiary of the other.
That apart, no such documents are filed on record.
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Netcore – Bliss
Order (Exh.7) 6 of 8
18) Having not pleaded and cleared said fact, then, at this
stage, it is held that,
V-RESORTS (which placed the Orders) and
Bliss Inns (defendant, from whom plaintiff is seeking recovery)
are different entities.
19) So, against Orders placed by V-RESORTS, plaintiff is
seeking recovery from different entity i.e. Bliss Inns. Unless
proved that they are one entity or subsidiary of other, plaintiff
cannot recover debt of one company from other. On this ground
itself, plaintiff cannot be granted Summons for Judgment.
E-mail address :
20) Plaintiff claimed that, all Orders were placed from email
ID as sarika.srivastava@vresorts.in.
Plaintiff has filed the Suit against Bliss Inns. In that
backdrop, it is not case of plaintiff that, defendant Bliss Inns is
using the mail IDs with
…...vresort.in.
Plaintiff also did not come with pleading that,
sarika.srivastava@vresorts.in is official mail id of defendant Bliss
Inns.
So, on that ground also, Orders placed from
vresort.in,
cannot be enforced by plaintiff against defendant Bliss Inns.
Proposal :
21) Plaintiff has filed the Purchase Orders at Page No. 20 to
No. 28.
These emails are from sarika.srivastava@vresorts.in i.e.
from Sarika, wherein, she stated as follows :
We have pleasure in informing you that, your proposal
for affiliate email marketing has been accepted subject
to the terms and conditions mentioned below.
In E-mails, Sarika is using words as,
your proposal…..
has been accepted.
It means,
proposal of providing services is initiated
from plaintiff and thereafter it was accepted by defendant.
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Netcore – Bliss
Order (Exh.7) 7 of 8
22) Further, in Para No. 3 of Plaint, plaintiff pleaded as
follows :
3. The Plaintiff states that pursuant to the Defendant’s
requirement, Plaintiff’s proposal for rendering its
Affiliate Marketing services to the Defendant was
accepted by the Defendant. …..
This pleading also points that, plaintiff placed the proposals,
which were accepted by defendant.
23) It is not case of plaintiff that, those proposals were by
oral communication. Therefore, it is held that, said proposals
must be by way of, emails or letters.
However, plaintiff has not pleaded and disclosed details
about these proposals as to, on what date plaintiff placed those
proposals, through which mode (email, fax) said proposal was
made with the defendant.
List of documents filed by the plaintiff at Page No. 17 to
No. 19, of the Plaint also do not have copies of such proposal.
24) Plaintiff has also not given explanation as to why details
of said proposal are not pleaded.
Absence of details of proposal and absence of
explanation as to why said details are not pleaded, supports the
defense regarding probable fraud.
Conclusion :
25) Plaintiff has not disclosed
proposals, which were
initiated from plaintiff.
Plaintiff has not disclosed relationship between V-
RESORTS (to whom plaintiff provided alleged services) and
defendant Bliss Inns (from whom, plaintiff is seeking recovery).
Thereby, defendant has successfully established
substantial defenses and thus, triable issues.
In that backdrop, plaintiff cannot be granted Summons
for Judgment. At the same time, defendant Bliss Inns cannot be
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Netcore – Bliss
Order (Exh.7) 8 of 8
imposed with any condition, so as to file Written Statement.
26) For these reasons, defendant will have to be granted
unconditional leave. Therefore, the Points are so answered and
Summons for Judgment is disposed off, by following Order :
ORDER
1. Application at Exh. 12, is filed.
2. Summons for Judgment No. 100169 / 2023, is
dismissed.
3. Unconditional Leave is granted to defendant to defend
the Suit.
4. Defendant shall file its Written Statement within 30
days from the date of this Order.
5. If defendant fails to file Written Statement within
stipulated 30 days, then Suit shall proceed without
Written Statement. Accordingly, plaintiff will be
entitled to take appropriate steps, as per rules.
6. Proceeding of Summons for Judgment No. 100169 of
2023 is closed.
7. Order pronounced in Open Court.
8. Plaintiff be informed about their right to challenge this
Order and limitation for same.
9. Record of Summons for Judgment shall be part of
Commercial Summary Suit No. 100438 / 2022.
Mumbai
Dated : 24.07.2024 (Vijay S. Hingne)
Additional District Judge,
Court Room No.31 - Commercial Court,
City Civil & Sessions Court,
Mazgaon, Greater Mumbai
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