Delhi High Court
Bennett Coleman & Co. Ltd. vs Shri Rakesh Kumar Sinha on 17 November, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: 9th November, 2009
Date of Order: November 17, 2009
IA No. 1211/2008 in CS(OS) No.484/2007
% 17.11.2009
Bennett Coleman & Co. Ltd. ... Plaintiff
Through: Ms. Meenakshi Arora, Advocate
Versus
Shri Rakesh Kumar Sinha ... Defendant
Through: Mr. Rakesh Khanna, Advocate &
Mr. Sudhir Kumar, Advocate
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
This order shall dispose of an application made by the
defendant seeking leave to defend. The plaintiff has filed this suit on the
basis of release orders placed by the defendant for publication of
advertisements and the bills raised by the plaintiff after publication of the
advertisements. The defendant has raised defence that the suit was not
maintainable under Order 37 CPC as there was no written contract
between the parties and invoices and bills do not amount to a written
contract and thus the suit should be treated as ordinary suit. The other
ground taken is that the bills raised by the plaintiff were inflated. There
was no liquidated amount payable in view of the bills having been
disputed. The suit was not based on any dishonoured cheque or bank
guarantee and therefore it was not maintainable. It was further stated that
documents filed by the plaintiff in support of the plaint were fabricated and
forged and there was no cause of action. There was no privity of contract
between the plaintiff and defendant. The documents filed by the plaintiff
were unauthorizedly issued by one of the employees of the defendant,
who colluded with the plaintiff. The release orders issued by the
defendant to the plaintiff were signed by one Mr. Nand Kumar Mishra and
Feedback Advertising Agency. Mr. Nand Kumar Mishra at one point of
time was the authorized representative of the defendant who in collusion
with employees of the Plaintiff Company and persons of M/s Feedback
Advertising Agency hatched a conspiracy against the defendant and
signed documents unauthorizedly. The release orders were not of either
defendant or its authorized representative and therefore there was no
concluded contract between the parties. Another ground taken is that the
plaintiff has stated that one cheque of Rs.50,000/- of the defendant got
dishnoured but the plaintiff has not placed that cheuqe on record. The
defendant also submitted that advertisements published by the plaintiff
were of Hero Honda and Bag Films. Hero Honda and Bag Films were
never the clients of the defendant therefore, the defendant could not have
acted at the behest of these companies for getting their advertisements
published through plaintiff.
3. It is submitted by the Counsel for the plaintiff that the
defence raised by the defendant was moon-shine and afterthought. The
plaintiff had raised bills in respect of those advertisements which were
actually published in the publications of the plaintiff and for which release
orders were placed by the defendant's authorized representative working
in Delhi office. The question of collusion did not arise because the plaintiff
had not raised bills without publication of advertisements. Whether or not,
the companies whose advertisements were published were clients of the
defendant, could not have been known by the plaintiff since plaintiff acted
on orders received from the defendant. It was not for the plaintiff to verify
whether the companies about whom defendant (authorized representative)
had placed orders were clients or not of defendant.
4. As far as defence of the defendant that suit was not
maintainable under Order 37 CPC is concerned I consider this question is
no longer res integra. This Court in Reliance Industries Ltd. v. Imperial
Pigments (P) Ltd. 104 (2003) DLT 651, after referring to relevant previous
cases held that this question stood settled and invoices/bills did form a
written contract within the contemplation of Order 37 CPC and a suit
based on bills and invoices shall be maintainable under Order 37 CPC.
5. The other defences raised by the defendant are also mostly
in air. There is no dispute about the fact that the release orders were
placed by authorized representative of the defendant. The contention of
defendant that its authorized representatives colluded with plaintiff and
issued release orders which were not of the clients of defendants is not
supported by any material. Such a defence can be raised by anybody.
There has to be some basis for raising such defence. At no point of time
the defendant had informed the plaintiff that the release orders should not
be accepted from Mr. Nand Kumar Misra, authorized representatives of
the defendant in Delhi office. Plaintiff had no means to find out whether
authorized representative had entered into some collusion with some third
party or not. As far as entering with collusion with plaintiff is concerned, I
find that ingredients of collusion or fraud are missing. It is not the case of
the defendant that without publication of the advertisements bills were
raised. Defendant has not placed on record his books of accounts, ledger
to show the real accounting position. No document has been placed on
record by the defendant that of the companies whose advertisements were
published, he had no dealings.
6. The defence raised by the defendant seems to be feeble and
weak defence and does not entitle the defendant for an unconditional
leave to defend. In order to give the defendant a chance to prove his
defence, a conditional leave to defend is granted to the defendant and
defendant is directed to furnish a bank guarantee or deposit the suit
amount in the Court within 30 days from today. Subject to furnishing of
bank guarantee in favour of Court or deposit of amount, the leave to
defend is granted. The defendant may file WS within 30 days from today
along with the bank guarantee or a deposit of the suit amount in the Court.
However, in case the bank guarantee is not furnished or the amount is not
deposited, the suit shall stand decreed.
November 17, 2009 SHIV NARAYAN DHINGRA, J.
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