Delhi High Court
Advert Communications Pvt. Ltd. vs Jsl Media Ltd. on 16 September, 2016
$~5
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : September 16, 2016
+ RFA(OS) 48/2016
ADVERT COMMUNICATIONS PVT LTD ..... Appellant
Represented by: Mr.Girdhar Govind, Advocate with
Ms.Neetu Singh, Advocate
versus
JSL MEDIA LTD ..... Respondent
Represented by: Mr.Abhimanyu Bhandari, Advocate
with Ms.Navneet S.Sehgal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J. (Oral)
1. While issuing notice in the appeal it was recorded in the order dated
August 16, 2016 that the appellant's plea of suit being barred by limitation
raised in paragraph 16 of the application seeking leave to defend has not
been considered by the learned Single Judge while declining appellant leave
to defend the suit filed by the respondent.
2. The respondent filed a suit invoking Order XXXVII of the Code of
Civil Procedure, 1908. It was the case of the respondent that it had various
Bus Queue Shelters (BQS). The appellant approached the defendant to
permit it to display advertisements of its clients. Various e-mails were
exchanged and it was agreed that sites would be made available at agreed
rates on purchase orders placed by the appellant. The appellant deposited by
way of security `1 crore. Thereafter on various dates purchase orders were
issued and sites were made available to the appellant. Bills were raised from
time to time. A sum of `1,37,43,911/- became due and payable.
Respondent raised a demand on December 19, 2013 upon the appellant. No
payment being received another communication dated December 27, 2000
was sent informing the appellant that security deposit in sum of `1 crore was
adjusted and thus `37,43,911/- be paid.
3. The suit seeks decree in sum of `37,43,911/- together with interest.
4. The rate at which interest is prayed for is not mentioned in the plaint
and neither in the prayer clause.
5. Be that as it may, the appellant filed an application seeking leave to
defend pleading that there was no privity of contract between the parties.
Bills raised were denied. Purchase orders being placed were denied. It was
pleaded that the suit was barred by limitation.
6. Relevant would it be to note that in the application seeking leave to
defend the appellant did not deal with the averment in the plaint that when
the terms of the agreement were finalized through e-mails the appellant
deposited with the respondent a sum of `1 crore.
7. Highlighting that in its letter dated December 30, 2013, responding to
the respondent's letters dated December 19, 2013 and December 27, 2013,
the appellant did not deny the agreement as alleged in the plaint nor did it
deny placing purchase orders, denial being simply that having checked up
the books of account of the appellant no amount was payable, the learned
Single Judge has held that the defence was a ruse. Declining leave to
defend, the suit has been decreed with interest @12% per annum from the
date when the suit was filed till recovery is made.
8. Letter dated December 30, 2013 written by the appellant to the
respondent in response to the respondent's letters dated December 19, 2013
and December 27, 2013; the former informing that `1,37,43,911/- is due and
the latter informing that after adjusting `1 crore, `37,43,911/- is payable, the
appellant responded as under:-
"To,
M/s. JSL Media Limited
Jindal Centre, 12, Bhikaji CAMA Place,
New Delhi-110066
Sub: Outstanding of `37,43,911/-
Dear Sir,
Please refer to your office letter dated 19.12.13 and
27.12.13. In this regard please be informed that I have
checked your ledger account in our books (Advert
Communications Pvt. Ltd.), there is no outstanding
amount payable to your Co. (JSL Media Ltd.) as on date
Regards,
Sincerely Yours,
For Advert Communications Pvt. Ltd.
Sd/-
(Authorized Signatory)
9. Confronted with the letter and called upon to justify its existence in
light of the application seeking leave to defend when there is a total denial
of any dealing between the parties, learned counsel for the appellant has no
answer. Confronted with the question as to what would be the effect of the
appellant not controverting respondent's assertion in its letter dated
December 27, 2013 that security deposit in sum of `1 crore was adjusted;
learned counsel for the appellant has no reply.
10. We therefore concur with the view taken by the learned Single Judge
that the defence raised is a moonshine and the appellant is liable to pay the
suit amount.
11. The demand is upon a written contract; the purchase orders.
12. That leaves the issue of limitation be dealt with. The learned Single
Judge has not dealt with the same.
13. Learned counsel for the respondent states that though pleaded in
paragraph 16 of the application seeking leave to defend that the suit was
barred by limitation, the appellant did not argue said aspect before the
learned Single Judge.
14. It is trite that where the grievance is that a point raised has not been
dealt with by a Court, before approaching the Appellate Court attention of
the Court which had passed the order should be drawn to said aspect. The
reason being that many a times pleas are taken in writing but given up
during arguments.
15. But we did not defeat the claim of the appellant on this technical
score.
16. In the plaint it has been averred that a running account was being
maintained. In the reply to the application seeking leave to defend it has
been averred that a running account was being maintained. In that view of
the matter decision dated December 21, 2011 in RFA(OS) 13/2002 Bharat
Skins Corporation vs. Taneja Skins Company Pvt. Ltd. passed by a Division
Bench of this Court would come to the rescue of the respondent.
17. As per said decision Article 113 would apply to a suit where prayer is
for recovery of money due on a running and a current account. The
limitation would commence when the right to sue would accrue i.e. when
claim was denied.
18. We therefore hold that the suit was within limitation.
19. Realizing that respondent's money is stuck, learned counsel for the
respondent makes an offer and wants the same to be recorded in our
decision. The offer is that if within 60 days from today the appellant pays to
the respondent the sum of `37,43,911/- together with interest @6% per
annum from the date of the suit till date of payment the respondent would
accept the same in satisfaction of the decree i.e. would waive right to receive
further 6% interest. We note that as per the decree interest awarded to the
respondent is @12% per annum from the date when the suit was filed till
realization. Dismissing the appeal we take on record the statement made by
the respondent, advising the appellant to take the benefit of the offer given.
If sum of `37,43,911/- is paid within six months from today it would be
tendered with interest @6% per annum from the date of the suit till
recovery. This would be as per the concession given by learned counsel for
the respondent. The decree otherwise being affirmed, consequences shall
flow if benefit of the offer is not availed of by the appellant.
20. Parties shall bear their own costs in the appeal.
CM No.20560/2016
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
SEPTEMBER 16, 2016
dkb
