Delta Energy Systems(India) Pvt. ... vs Diac Services & Another
2015 Latest Caselaw 4103 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment:21.05.2015.

+     CS(OS) 144/2009

      DELTA ENERGY SYSTEMS(INDIA) PVT. LTD

                                                              ..... Plaintiff
                         Through      Mr Anil Airi, Ms Shreya
                                      Bhandari and Mr Ravi Chandana,
                                      Advs.

                         versus

      DIAC SERVICES & ANOTHER
                                                          ..... Defendants

                         Through      None.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1. Present suit is a suit for permanent and mandatory injunction.

2. The plaintiff is a company incorporated under provisions of the

Indian Companies Act. It is engaged in the business of manufacture and

sale of power systems such as DC power supply systems, auxiliary

power supply systems, UPS etc. It is a well recognized company and

enjoyed good reputation. Defendant No.1 is proprietorship firm of

defendant No.2. It is engaged in the business of sales, services,

maintenance, rentals and buy-back of power electronic products like

UPS systems etc.

3. The plaintiff and defendant No.1 had entered into a dealership

agreement dated 07.11.2006 whereby the plaintiff had appointed

defendant No.1 as its dealer for reselling/distributing/marketing/

servicing the plaintiff's product in India. This arrangement continued

and payment for the supplies made by the plaintiff to the defendants for

July, 2008 to December, 2008 to the tune of Rs.17,83,080/- are yet

outstanding.

4. In spite of various requests, this amount was not paid by

defendant. The plaintiff was constrained to stop the supply of goods to

defendant No.1. Soon thereafter, the plaintiff was flooded with calls/

communications from its partners/dealers regarding various SMSs

where the defendant attempted to malign and defame him. The plaintiff

set up an enquiry as to find out who was the registrant of the web site

www.smstobiz.in and he was acting with a malafide intention to defame

impeccable goodwill and reputation of the plaintiff. The plaintiff as a

result of the aforenoted SMSs has suffered humiliation, embarrassment

and mental agony. The business of the plaintiff has also been adversely

affected. The suit of the plaintiff was accordingly filed seeking restraint

the defendants from sending or issue any defamatory or malicious

statements or communication qua the plaintiff.

5. The defendant had put in appearance. He filed written statement.

He denied the allegations and submissions made in the plaint.

Submission was that it was the duty of the plaintiff to supply goods and

services to the defendant but it has failed to do so within time. It was

admitted in para 5 that the said website www.smstobiz.in was registered

in the name of defendant but it was running since the year 2008. He

otherwise denied the allegations made in the plaint.

6. Replication was filed reiterating the averments contained in the

plaint and refuting the submissions made in the written statement.

7. On the pleadings of the parties, on 27.08.2010, the following

issues were framed. They read herein as under:-

(i) Whether this Court has the territorial jurisdiction to

entertain the present suit? OPD

(ii) Whether the SMSs sent by the defendants are defamatory in nature? OPP

(iii) Whether the plaintiff has suffered damages to its goodwill and reputation due to the SMSs? OPP

(iv) Whether the plaintiff's business has been adversely affected due to the circulation of the defamatory SMSs sent by the defendant? OPP

(v) Whether the plaintiff is entitled for perpetual and mandatory injunction as prayed for? OPP

(vi) Reliefs.

8. The plaintiff in support of his case has examined PW1 Deepak

Sharma. He has proved the documents in support of the claim of the

plaintiff as Ex.P-1 to Ex.PW1/26. PW-1 was cross examined by the

learned defence counsel. It was admitted that the proof of losses has not

been filed because the same are to be quantified in due course. It was

reiterated that the plaintiff had received emails and SMSs from the

defendant. He denied the suggestion that these mails were not sent by

the defendant.

9. In spite of opportunity having been granted to the defendant, he

did not lead any evidence. Right of the defendant to lead evidence was

accordingly closed on 07.05.2014.

10. Arguments have been heard.

11. The oral and documentary evidence which has been placed on

record which includes the statement of PW-1 duly supported by the

documents establishes the case of the plaintiff. The witness has not been

shaken in his cross-examination. No evidence has been led in defence.

The plaintiff is entitled to the relief as claimed for by him. Learned

counsel for the plaintiff has pressed for prayers (b) and (c) in the prayer

clause.

12. Accordingly, the suit of the plaintiff is decreed and a decree of

perpetual injunction is passed in favour of the plaintiff and against the

defendants and they are restrained from printing, publishing,

reproducing or circulating in any manner SMSs/articles which are

defamatory or in any other malicious statement through website

www.smstobiz.in or through any other medium whatsoever. No order

as to costs.

13. Suit of the plaintiff is decreed and disposed of in the above terms.

INDERMEET KAUR, J MAY 21, 2015 Mk/A