Jsl Media Ltd vs Advert Communications Pvt Ltd
2015 Latest Caselaw 8351 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Judgment pronounced on: November 4, 2015

+              I.A. No.17890/2014 & I.A. No.6773/2014
               in CS(OS) No. 152/2014

       JSL MEDIA LTD                                         ..... Plaintiff
                          Through     Mr.Abhimanyu Bhandari, Adv. with
                                      Ms.Aanchal Mullick, Adv.

                          versus

       ADVERT COMMUNICATIONS PVT LTD             ..... Defendant
                    Through   Mr.Girdhar Govind, Adv. with
                              Ms.Neetu Singh, Adv.

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiff has filed the present summary suit under Order XXXVII CPC for the recovery of Rs.37,43,911/- along with costs and interest against the defendant.

2. The plaintiff is a company registered under the provisions of Companies Act, 1956 (formerly known as Parivartan City Infrastructure Limited) with its Registered Office at 28, Najafgarh Road, New Delhi-110015 and Corporate Office at Jindal Centre, 12, Bhikaji Cama Place, New Delhi-110066. The name of the plaintiff Company was changed on 30th August, 2010. The Registrar of Companies was informed and the new name of the Company was entered by the Registrar of Companies. The fresh certificate of incorporation of the plaintiff Company dated 30th August, 2010 has been placed on record.

3. As per the plaint, the plaintiff has various Bus Queue Shelters (hereinafter referred to as "BQS") at different locations/sites in the National Capital Territory of Delhi which the plaintiff gainfully uses for advertisement purposes. The defendant approached the plaintiff with the proposal for utilizing the display panels/spaces at agreed BQS for the display of advertisement by its various clients and the plaintiff permitted the defendant for utilizing the same, against payment of agreed amount, through the various confirmed Purchase Orders and/ or e-mails. The plaintiff was maintaining a running account in favour of the defendant in respect of the consideration/charges against the display of advertisements payable by the defendant, is a private limited company duly registered under the Act.

4. The defendant through various Purchase Orders and emails (hereinafter referred to as "Purchase Orders") placed orders with the plaintiff for display of advertisements at plaintiff's various BQS sites, the details of which has been given as under:-

S.No. PO. Reference PO. Date Bill Amount Bus Q Total Shelters

1. E-mail 06.04.2010 110,300 1 1 Part payment received and due amount is 77,125

Total 37,43,911

The above said Purchase Orders were accepted by the plaintiff.

5. It is stated in the plaint that the plaintiff as per these confirmed Purchase Orders allowed the defendant to display advertisements at the various BQS sites from time to time and accordingly raised bills against each accepted Purchase Order for timely payment by the defendant.

6. The defendant had duly signed and acknowledged the receipt, amounts payable and the contents of such bills raised by the plaintiff enumerating all the contractual obligations including payment terms agreed between the plaintiff and the defendant and clearly outlining the amount payable by the defendant to the plaintiff. Thus, the defendant had accepted and acknowledged its liability to pay the amount to the plaintiff within the agreed time period as raised in the bills. The details of all these Purchase Orders and bills along with outstanding payments in respect of the accepted Purchase Orders and the display of advertisements at the BQS sites of the plaintiff are here as under:

     Sr.        Bill No.                Bill Date    Amount
     No.
     1.         PCIL/2010-11/0392       04.01.2011   248,175/-
     2.         PCIL/2010-11/0357       30.11.2010   248,175/-
     3.         PCIL/2010-11/0284       30.09.2010   148,905/-
     4.         PCIL/2010-11/0279       22.09.2010   93,755/-



      5.         PCIL/2010-11/0232    29.08.2010    44,120/-
     6.         PCIL/2010-11/0231    29.08.2010    94,494/-
     7.         PCIL/2010-11/0230    29.08.2010    365,872/-
     8.         PCIL/2010-11/0229    29.08.2010    937,550/-
     9.         PCIL/2010-11/0228    29.08.2010    121,330/-
     10.        PCIL/2010-11/0227    29.08.2010    110,300/-
     11.        PCIL/2010-11/0226    29.08.2010    143,389/-
     12.        PCIL/2010-11/0225    29.08.2010    173,171/-
     13.        PCIL/2010-11/0224    29.08.2010    937,550
     14.        PCIL/2010-11/0218    29.08.2010    77,125(110,300)/
                                                   -
                Total                              37,43,911/-

7. The original documents are placed on record. The plaintiff had issued reminders through e-mails, telephone calls etc. as alleged and tried to be reminiscent regarding the overdue amount but the defendant did not respond to any of the requests made by plaintiff regarding the amount which was overdue on behalf of defendant in respect of display of advertisements.

8. The plaintiff thereafter, sent a letter dated 19th December, 2013 to the defendant whereby a demand of principal outstanding amount of Rs. 1,37,43,911/- along with interest was made to the defendant to clear the outstanding dues within 7 days from the receipt of the letter.

9. The defendant had deposited a security deposit of Rs.1,00,00,000/- with the plaintiff which was payable to the defendant after necessary adjustments and upon realization of the outstanding debts.

10. As the defendant had failed to make the payments even after repeated reminders, the security deposit was adjusted by the plaintiff against the overdue total outstanding of Rs. 1,37,43,911/-.

11. As there was no communication made by the defendant regarding the outstanding payments, the plaintiff sent another letter dated 27th December, 2013 to the defendant whereby it demanded the rest of the outstanding amount of Rs. 37,43,911/- along with interest, directing the defendant to clear the outstanding dues within 48 hours from the receipt of the letter.

12. It was intimated by the plaintiff through this letter that defendant's security deposit was adjusted by the plaintiff against the overdue total outstanding of Rs.1,37,43,911/-.

13. On 30th December, 2013 a reply was received by the plaintiff from the defendant denying the payment of outstanding amount of Rs.37,43,911/-. As the remaining balance payment was not made, the present suit under Order XXXVII CPC has been filed where the notice was issued to the defendant in the prescribed manner.

14. Upon compliance of formalities, the defendant filed an application under Order XXXVII Rule 3(5) read with Section 151 CPC for grant of leave to defend the said suit on the following grounds :

i) It is submitted that the plaintiff has not supplied the documents filed with the plaint to the defendant. The defendant reserves its right to file the additional affidavit as and when the plaintiff supplies the documents to the defendant.

ii) There is no privity of contract between the plaintiff and the defendant. No contract or any purchase order was placed by the defendant.

iii) The plaintiff neither furnished nor filed any alleged purchase order alleged to have been placed by the defendant. The defendant never placed such orders with the plaintiff for display of advertisement at plaintiff's various BQS, which were allegedly

accepted by the plaintiff or that such alleged acceptance took the shape of a legal contract.

iv) The defendant had no contract with the plaintiff or its predecessor M/s. Parivartan City Infrastructure Limited, which could give any cause of action to the plaintiff against the defendant. The suit has not been filed by a duly authorised person.

v) The plaintiff has shown an outstanding amount of Rs.37,43,911/-

as on 29th August, 2010. Admittedly the suit has been filed on or about 3rd January, 2014 and as such the suit filed by the plaintiff is barred by limitation and not recoverable.

15. In reply on behalf of the plaintiff to the affidavit/application filed on behalf of the defendant seeking leave to defend the above mentioned suit, the plaintiff has denied all the grounds raised in the application.

16. It is further submitted in the reply that it is no longer res integra that Invoices/Bills are 'written contracts' within the contemplation of Order XXXVII CPC. It is also submitted that a perusal of the invoices, placed on record, demonstrates that they contain full details regarding the display charges for advertisements on different BQS. These invoices tantamount to a binding contract between the parties.

17. It is submitted that all the relevant documents have been duly placed on record with the plaint and supplied to the defendant. Counsel for the plaintiff submits that the defendant has appeared before this Court on 19th May, 2014 however, the plea of non supply of the documents was not raised by the defendant at that point of time, thus at this stage, it is not possible to accept the false plea of the defendant. In fact the defendant had received the copy of the plaint and all documents filed along with the plaint. The defendant is trying

to confuse the issue as all the documents on which the suit is based are on record of the Court and the same have been duly supplied to the defendant.

18. The plaintiff has filed the original documents, it appears that defendant through various Purchase Orders placed orders with the plaintiff for display of advertisements at plaintiff's various BQS sites and these Purchase Orders were accepted by the plaintiff and the Bills/invoices were raised thereupon. The plaintiff accordingly was maintaining a running account in favour of the defendant in respect of the consideration/charges payable against display of advertisements by the defendant. The plaintiff, as per these confirmed Purchase Orders, raised bills against each accepted Purchase Order for timely payment by the defendant.

19. The defendant has signed and acknowledged the receipt, amounts payable and the contents of such bills raised by the plaintiff enumerating all the contractual obligations including payment terms agreed between the plaintiff and the defendant. Therefore, the defendant cannot deny the claim of the plaintiff by stating the proposition which is not tenable in law. The suit of the plaintiff is based on various bills and Purchase Orders, which have been placed on record.

20. The contents of such bills raised by the plaintiff enumerating all the contractual obligations including payment terms agreed between the plaintiff and the defendant, thus taking the shape of a legal contract. Therefore, there is no question of the suit being not maintainable. The bills/invoices/purchase orders under reference have been duly signed by both the parties thereby categorically acknowledging the liabilities and scope of relationship and thus,

defendant cannot be now permitted to abstain from performing its duties under the same by making a mere bald statement that no contract or any purchase order was placed by it.

21. The defendant submits that the defendant never placed orders with the plaintiff for display of advertisement at plaintiffs various BQS shelter. But at the same time all the bills/purchase orders/letters/e- mails annexed with the plaint were duly acknowledged by the defendant. If the defendant did not place orders with the plaintiff for display of advertisement at plaintiff's various BQS shelter then why the defendant is having a running account with the plaintiff. The plaintiff's account in the defendants' accounts have further been admitted by the defendant in its letter dated 30th December, 2013.

22. It is evident from the record that the plaintiff against confirmed Purchase Orders provided services to defendant time to time and raised bills against every Purchase Order for payment, and the defendant has acknowledged the receipt of such bills raised by the plaintiff and also made the part payments on different occasions.

23. The plaintiff sent a letter dated 19th December, 2013 to the defendant whereby a demand of principal outstanding amount of Rs. 1,37,43,911/- was made to the defendant. The defendant had deposited a security deposit of Rs.1,00,00,000/- with the plaintiff which was to be refunded to the defendant only after necessary adjustment and upon realization of the outstanding debts. As there was no communication made by the defendant regarding the long outstanding payment, this security deposit was adjusted by the plaintiff against the overdue total outstanding amount of Rs.1,37,43,911/-. Consequently, the plaintiff sent a letter dated 27th December, 2013 to the defendant whereby it demanded the rest of the

outstanding amount of Rs.37,43,911/-. But the defendant did not raise any protest about the adjustment of security amount of Rs. One crore rather a reply was given that nothing now is due. In case there were no business transactions as per the case of the defendant, then why the security amount was deposited and why the defendant did not take any steps for many years in order to recover the said amount. Thus, silence of the defendant speak that the defendant has accepted and acknowledged its liability to pay the amount to the plaintiff.

24. The details of all these Purchase Orders and bills along with outstanding payments in respect of the accepted Purchase Orders and the display of advertisements at the BQS sites of the plaintiff are already annexed with the suit and have been duly supplied to the defendant.

25. It is denied that plaintiff has shown an outstanding amount of Rs.37,43,911/- as on 29th August, 2010. It is submitted that Bills/invoices under question pertaining to the year 2010 and 2011 and there were several transactions between the plaintiff and defendant for which a running account was maintained in respect of consideration against display of advertisements payable by the defendant. The plaintiff has filed the incorporation certificate about the change of the name of the company. The defendant has at that time dealt with plaintiff under the company name of the defendant i.e. Advert Communications Pvt. Ltd. There is no force in the submission that in few bills the name of the defendant company was mentioned as Advert Communications only. Counsel on behalf of defendant has denied the fact that the defendant was even proprietor/partnership firm. Thus, the said arguments are without any force.

26. In M/s. Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation, reported in AIR 1977 SC 577 the Supreme Court has evolved the following principles which are to be followed while considering the question of granting leave to defend:-

"(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defence.

(b) If the defendant raises a triable issue indicating that he has a fair or bonafide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence."

27. The Supreme Court and various High Courts have held time and again in the judgments that in "In order to entitle the defendants for leave to defend, it is incumbent upon them to show that they have a substantial defence and triable issues to raise and their defence is not frivolous or vexatious. No rule of thumb can be laid down for grant of leave to defend and each case has to be decided on its particular facts and circumstances. Leave to defend would be granted if it is shown that the defendants are raising triable issues and their plea is at least bonafide and plausible and not sham or illusionary or practically moonshine".

28. Even there is no force in the submissions that there is no written contract therefore, the suit filed by the plaintiff is not maintainable.

29. In the case of Lohmann Rausher Gmbh v. Medisphere Marketing Pvt. Ltd., (2004) 117 DLT 95 decided by this Court speaking through Mr.Justice Pradeep Nandrajog, it has been held in para 15 and 18 that invoices are a complete contract, required by law, where the contract pertains to sale of goods. Para 15 and 18 reads as under:-

"15. It is apparent that a suit which seeks to recover a debt or a liquidated demand in money payable by the defendant arising out of a written contract is maintainable under Order XXXVII Rule 1 as a summary suit. It is no longer res-integra that invoices/bills are "written contracts" within the contemplation of Order XXXVII Rule 2. Reference could conveniently be made to decisions of this court reported as Punjab Pen House v. Samrat Bicycles Limited, AIR 1992 Delhi 1; Corporate Voice Private Limited v. Uniroll Leather India Limited, 60 (1995) DLT 321; Beackon Electronics v. Sylvania & Laxman Limited, 1998 (3) AD (Delhi) 141; and KIG Systel Limited v.Fujitsu ICIM Ltd., AIR 2001 Delhi 357.

18. It is not the case of the defendant that the invoices do not conform to the purchase order. As noted, the invoices raised contain the description of the goods, quantity and price. As noted, conditions of payment stand reflected in the invoice. Additionally, delivery address also finds mentioned in the invoice. All features pertaining to a contract of sale of goods are to be reflected in the two invoices. The invoices are a complete contract, required by law, where the contract pertains to sale of goods."

30. The question of filing of detailed affidavit does not arise as the defendant has made false grounds in the application. The defence is just moonshine.

31. The application for leave to defend is rejected accordingly. Consequently the suit of the plaintiff is decreed with costs. The decree is passed for a sum of Rs.37,43,911/-. The plaintiff is also entitled for interest @ 12 % pa from the date of filing of suit till the date of recovery. The decree is drawn accordingly.

32. The suit and application are disposed of.

(MANMOHAN SINGH) JUDGE NOVEMBER 4, 2015