IN THE COURT OF SH. DEVENDER KUMAR, ADJ-04, NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI. CS No. 3[SECTION]0/14 Amar Motors J Block, DDA Market, Shop No. 3[SECTION], Vikas Puri, New Delhi 110 039 Through its Proprietor Mr. [ENTITY] Plaintiff Vs. TATA Motors Finance Limited 4th Floor, Kanchenjunga Building, 18, Barakhamba Road, New Delhi -110 001 Through its Director Defendant Date of institution : 10.08.[SECTION]011 Date on which reserved for judgment : 13.01.[SECTION]015 Date of decision : 13.01.[SECTION]015 Suit for specific performance and damages Judgment : Vide this judgement, I shall dispose of a suit for damages filed by the plaintiff against the defendant. Brief facts of the case are as under: 1.
Plaintiff has claimed itself to be a proprietorship firm and is being represented by Sh. [ENTITY] who is stated to be a proprietor of the plaintiff firm. It is further stated that the plaintiff is an authorized dealer of the defendant which is a limited company. It is further stated that in the month of August [SECTION]008, an auction was held by defendant for selling of several cars and plaintiff was interested in purchasing of a car CS No. 3[SECTION]0/14 [PRECEDENT] 1/10 make TATA Indigo having Chasis No. 607144DSZP66583, Engine No. 475IDT14D SZP 65145 which was lying with Cargo Motors, Phillaur, Punjab. It is further stated that the plaintiff duly inspected the vehicle before making a bid and it was in a fit condition and thereafter plaintiff made a bid of Rs. [SECTION],80,000/- which was declared highest bid in respect to contract No. 50001[SECTION][SECTION][SECTION]05. It is further stated that on 13.0[SECTION].[SECTION]008, plaintiff made a payment of Rs. [SECTION],30,000/- against receipt and further paid a sum of Rs. 50,000/- on 16.09.[SECTION]008. It is further stated that plaintiff was handed over necessary documents regarding release of vehicle and also for its registration but plaintiff was shocked to see that the said vehicle was badly damaged and refuse to take delivery after taking photographs of the vehicle. Plaintiff apprised the defendant about the condition of the vehicle and defendant also offered to reduce the prices but plaintiff was not ready to accept the delivery of the vehicle. It is further stated that the plaintiff has also paid a sum of Rs. [SECTION]0,000/- qua contract No. 4085[SECTION]4[SECTION]4 regarding vehicle No. UA-04 A 7[SECTION]5[SECTION] and said money has also not been refunded. It is further stated by the plaintiff that the defendant has failed to refund the money despite service of legal notice. By way of this suit, the plaintiff has claimed damages of Rs. 3 Lacs alongwith interest and has also claimed a money decree of mesne profits.
[SECTION]. Defendant has filed written statement to this suit thereby alleging that this court has no territorial jurisdiction to entertain this suit as the courts at Mumbai have exclusive jurisdiction as per the agreed terms of the agreement executed between the parties. It is further stated that the plaintiff has claimed itself to be a proprietorship firm which is not a legal entity and this suit filed by the firm is not maintainable. It is further stated that the vehicle was in the same condition as it was at the time of inspection, but plaintiff has falsely alleged that the vehicle has been CS No. 3[SECTION]0/14 [PRECEDENT] [SECTION]/10 damaged after auction. It is further stated that the plaintiff deposited a sum of Rs. 1,30,000/- on 13.09.[SECTION]008 and rest of the amount was deposited on 18.09.[SECTION]008. It is further stated that the plaintiff participated in open auction / bid to purchase the vehicle in question and the vehicle was lying in the yard when plaintiff purchased it 'As is where is basis' on its satisfaction and after inspection of the vehicle. After making the payment of bid amount the release order was issued in favour of the plaintiff and a letter to transfer of vehicle was also issued to RTO, but the plaintiff had deliberately refused to take the delivery of the vehicle on the pretext of damaged condition. It is further stated that the plaintiff has already purchased the vehicle and transaction is complete due to defendant is not liable to refund the amount in any manner. It is further stated that plaintiff has falsely sought a refund of an amount of Rs. [SECTION]0,000/-, whereas it has not been mentioned in which year the said vehicle bearing No. UP04-A 7[SECTION]5[SECTION] was purchased by plaintiff or how the amount was deposited. It is further stated that the said vehicle was sold to M/s. [ENTITY] through open bid held in the month of February, [SECTION]009 against a cost of Rs. 75,000/- and purchaser has paid the amount on [SECTION]6.09.[SECTION]009 and has taken the delivery of the vehicle from the yard, but plaintiff has falsely alleged that he has paid the amount. It is further stated that the transaction of the plaintiff was already complete in terms of [SECTION] of [ACT] and this suit of the plaintiff is liable to be dismissed with heavy cost.
3. Plaintiff has filed replication to the written statement of the defendant thereby denying all the allegations and has reiterated its allegations levelled in the suit.
4. As per the pleadings of the parties following issues were framed by this court vide order dated [SECTION]8/0[SECTION]/[SECTION]014 as under :
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(i) Whether this court has territorial jurisdiction to entertain this suit? OPD
(ii) Whether plaintiff has purchased the vehicle 'as is where is basis' as alleged? OPD
(iii)Whether plaintiff is entitled for decree of damages as prayed ? OPP.
(iv) Whether plaintiff is entitled for relief of mesne profit, if so, at what rate and for what amount? OPP
(v) Relief
5. To prove the case, plaintiff has examined PW1 [ENTITY] and closed PE. Defendant has examined DW1 Sh. [ENTITY] and closed DE.
6. I have heard the arguments and perused the record. Before deciding this case on issues framed by this court, one objection taken by the plaintiff is material to be considered. Ld. Counsel for plaintiff has argued that the authorized representative of the defendant Mr. [ENTITY] has appeared before this court in the capacity of authorized representative of the defendant but no such authorization has been placed on record due to he may not be authorized representative of the defendant and defence taken by the defendant alongwith entire proceedings carried out on behalf of defendant through Mr. [ENTITY] becomes null and void. It is further submitted that this suit is liable to be decreed and defence of the defendant is not liable to be considered.
On the other hand, Ld. Counsel for defendant has argued that this issue was never raised by the plaintiff earlier and even DW has not been cross examined by the plaintiff on this point due to this defence is of no use. It is further argued that Mr. [ENTITY] is an authorized CS No. 3[SECTION]0/14 [PRECEDENT] 4/10 signatory of defendant and being authorized signatory he has every authority to contest this suit against the defendant and evidence led on behalf of defendant and other proceedings conducted by him are well maintainable as well as authorized and this suit is liable to be dismissed.
I have heard the arguments and gone through the record. Admittedly, defendant is a company and is a separate legal entity and a juristic person. A company is to be represented by some authorized representative or by a person who has been authorized by Board of Directors by the way of resolution passed in a meeting of Board of Directors to this effect and even any individual director has no power to act on behalf of company without specific resolution as held in AIR [SECTION]007 Delhi 157, titted [PRECEDENT] Besides it, as per [SECTION] [ACT], in a suit by or against a corporation, any pleadings may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. As per this provision, the pleadings which includes a plaint and written statement ought to be signed by the authorized person as mentioned under [SECTION] & [SECTION] [ACT] but a resolution passed by Board of Directors in favour of any authorized person is required separately as held in [PRECEDENT]. As such, merely an authorized signatory cannot represent a corporation or a company in any other capacity. In this case, Mr. [ENTITY] has presented the defendant in the capacity of authorized signatory of defendant and even has signed and verified the pleadings and sworn affidavits to prove all the facts without filing any such authority / resolution on record, due to he could not be considered an authorized representative of the defendant. In fact, any of such proceedings conducted by Mr. [ENTITY] without any specific authorization amounts to illegitimate or unauthorized and are CS No. 3[SECTION]0/14 [PRECEDENT] not liable to be considered. As such, virtually defendant has no defence on record. However, it is settled proposition of law that even in an ex-parte case, plaintiff has to prove his / its defence without assistance of opposite party and on the basis of this principle, plaintiff is liable to prove its case on merit, even in the absence of any defence of the defendant.
7. After going through the evidence of parties, my issue wise findings are as under:
Issue no. (i) The onus to prove this issue was fixed upon the defendant. Though the defendant has no defence before this court in view of my observations made hereinabove, yet it is a legal issue which may be argued and proved by the defendant. It is argued on behalf of defendant that it was agreed between the parties that only Mumbai Courts shall have exclusive jurisdiction to entertain any dispute between the parties but plaintiff has failed to exercise this right and has instituted this suit at Delhi and this suit is liable to be returned or dismissed. On the other hand, Ld. Counsel for plaintiff has argued that the auction was held at Delhi and even defendant has its corporate office at Delhi and partly cause of action had arisen within the jurisdiction of this court due to this court has jurisdiction to entertain this suit and suit is liable to be decreed.
I have heard the arguments and perused the record. It is settled proposition of law that an exclusive jurisdiction cannot be conferred on any exclusive court and this legal proposition has been laid down by the Hon'ble Supreme court of India in ABC Laminart Pvt. Ltd. V. A.P. Agencies, AIR 1989 SC 1[SECTION]39, however if parties have two jurisdictions then they may choose one jurisdiction. In the absence of any defence or relying upon any document by the defendant regarding choosing of one CS No. 3[SECTION]0/14 [PRECEDENT] 6/10 jurisdiction, this suit has to be governed only by [SECTION] of [ACT]. As per the evidence led by the parties, it is clear that the defendant has its office within the jurisdiction of this court and even bidding and auction took place at Delhi only and partly cause of action has arisen within Delhi due to this court has territorial jurisdiction. Defendant has failed to discharge the onus to prove this issue and this issue is decided against the defendant and in favour of the plaintiff.
8. Issue no. (ii) The onus to prove this issue was fixed upon the defendant. Though the defendant has no defence on factual aspects, yet it is not disputed that the plaintiff participated in the bid to purchase a vehicle and bid was made only after inspection of the vehicle thoroughly. It is further not disputed on behalf of defendant that the plaintiff participated in the bid and paid full and final payment and necessary documents were also handed over to the plaintiff. It is the case of the plaintiff that the vehicle was not in same condition as it was at the time of auction and it was found in damaged condition at the time of possession. Though none of the parties has filed copy of said agreement which was executed between the parties yet existence of agreement is not disputed. Defendant has disclosed the terms and conditions of agreement which have not been disputed by the plaintiff in reply to written statement / replication where it was alleged that the bid was on 'As is where is basis'. Even otherwise, it is a general rule of bidding that any product under bid is to be sold out on 'as is where is basis'. In the absence of any dispute about this proposition the defendant has proved this issue. Plaintiff purchased the vehicle 'as is where is basis' and defendant has discharged the onus to prove this issue and this issue is decided in favour of defendant and against the plaintiff.
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9. Issues No. (iii) & (iv) The onus to prove these issues was fixed upon the plaintiff. To discharge the onus, plaintiff has examined himself as PW1 in the capacity of proprietor of the plaintiff and has proved certain documents. First of all, the pleadings of the plaintiff are to be considered on legal aspect. Plaintiff is seeking damages in the heading of the suit as well as in prayer clause, but he has not explained such fact which makes it entitle for damages. Even in the entire suit the plaintiff has not explained for what purposes damages have been claimed by the plaintiff. To prove the damages there must be some losses occurred to the plaintiff and even the damages must either be quantified or proved, but in this case, plaintiff has just sought recovery of that amount which was deposited against a bid and bid was admittedly concluded and defendant also executed necessary documents to transfer the vehicle in favour of the plaintiff. Admittedly, plaintiff did not take the delivery of the vehicle and now has claimed the damages which are not maintainable. To substantiate the claim, plaintiff was required to take the delivery of the vehicle and thereafter to seek the damages which could have been claimed after proving the actual losses suffered by plaintiff on account of defect vehicle by the defendant. Damages only may be claimed in terms of [SECTION] & [SECTION] of [ACT], but in this case, none of the ingredients of [SECTION] / [SECTION] of [ACT] have been proved by the plaintiff. In the absence of proving any damages caused to the plaintiff by the defendant, plaintiff is not entitled for recovery of any such damages.
Further, plaintiff has claimed mesne profits from the defendant, but it is again beyond explanation as to what mesne profits are to be assessed under [SECTION] [ACT]. Mesne profits are to be ascertained on the basis of undue profits earned by the holder of a CS No. 3[SECTION]0/14 [PRECEDENT] 8/10 property, but in this case, plaintiff has neither alleged in the plaint about the profits earned by defendant at the cost of the plaintiff nor any such evidence has been led to this effect. As such, this relief is also not maintainable.
10. Now come to factual aspects. The plaintiff has claimed amount of the vehicle which was purchased by it in an open bid and amount was deposited. Admittedly, plaintiff inspected the vehicle which was to be sold out 'as is where is basis' and defendant has proved this fact. Even it is not a disputed fact on behalf of plaintiff as well that the bidding of an item is to be done 'as is where is basis' and only prior inspection is permissible which was done by the plaintiff. Plaintiff deposited the amount which was duly accepted by defendant and necessary documents were executed. Thereafter, plaintiff failed to take delivery of vehicle but has filed this suit to claim the damages. In the absence of taking delivery of vehicle, plaintiff is seeking damages without proving any damage on record due to plaintiff is not entitled for any damages. Though the payment against the vehicle in open bid has been proved by the plaintiff vide Ex. PW1/[SECTION] which is not disputed, yet plaintiff has relied upon some documents which are only photocopies or email or letters of which originals have not been proved on record, due to these documents have no evidenciary value and are not liable to be considered. Plaintiff has not produced the original documents for the inspection of the court and even also did not adopt the procedure of [SECTION] [ACT] or [SECTION] [ACT], due to adverse inference is bound to be drawn against the plaintiff. Even the photographs Ex. PW1/6 (colly) have been relied upon without their negatives due to these documents also could not be proved. As such, in the absence of proving any such documents, the claim of the plaintiff could not be proved.
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11. So far the dispute of amount of Rs. [SECTION]0,000/- against a vehicle bearing No. UA04-A 7[SECTION]5[SECTION] is concerned, plaintiff has not led any evidence to prove it or in what capacity this payment was made by the plaintiff to the defendant. In the absence of proving this fact or payment, plaintiff is not entitled for this relief as well.
1[SECTION]. Admittedly, the sale of items is to be governed by [ACT] and in case of bidding of an item, sale is usually complete when the auctioneer announces its completion by the fall of hammer or in any other customary manner; and, until such announcement it made, any bidder may retract his bid, but sale is complete 'as is where is basis' and bidder is bound to take delivery of the item after bidding. By this principle also, plaintiff was bound to take delivery of the vehicle being a successful bidder. As such, sale was complete under [SECTION] of [ACT]. As such, plaintiff has failed to discharge the onus to prove both the issues and both issues are decided against the plaintiff and in favour of defendant.
13. Relief :
Since the plaintiff has failed to prove that it is entitled for any relief, accordingly this suit is hereby dismissed. No such order of cost. Decree sheet be prepared. File be consigned to record room after due compliance.
Dated:- 13.01.[SECTION]015 ([ENTITY]) Announced in the open Court. ADJ-04, New Delhi District, Patiala House Courts, Delhi. CS No. 3[SECTION]0/14 [PRECEDENT] 10/10