IN THE COURT OF SH. [ENTITY] ADDITIONAL DISTRICT JUDGE01 (CENTRAL) TIS HAZARI COURTS, DELHI C.S. No. 276/2009 [CASE NUMBER] [ENTITY], A company incorporated under the provisions of Indian Companies Act, 956, having its registered office at: Raheja's 4th Floor, Corner of Main Avenue & V.P. Road, Santa Cruz (W), Mumbai400054. Plaintiff Versus 1) M/s [ENTITY], Office at Shop No. 10, New Market, Atta, Noida (U.P.) 2) [ENTITY], 82, Okhla Industrial EstateII, New Delhi. Defendants SUIT FOR RECOVERY OF RS. 8,84,564/ WITH INTEREST [CASE NUMBER] [ENTITY] Vs. M/s [ENTITY] & Anr. Page 1 of 29 Date of institution of suit : 23.02.2008 Date of conclusion of arguments : 14.05.2015 Date of pronouncement of judgment : 05.06.2015 JUDGMENT
1. The plaintiff has filed the present suit against the defendants for recovery of Rs. 8,84,564/ alongwith pendente lite and future interest @ 12% per annum. The factual matrix of case of plaintiff in brief is as follows. Plaintiff, a duly incorporated private limited company through authorized representative averred to be primarily acting as MSO and engaged in business of reception and distribution of satellite television, broadcast signal and other electronic signal to various local cable operators and business affiliates and held vast goodwill and reputation. Defendant no1 was running an advertising agency and procured advertisement from various leading Indian and Multinational Companies for promoting and boosting the sales of the products/goods of the companies by advertisement through cable feed of the plaintiff company. Defendant no2 was a leading multinational company primarily dealing in manufacturing of electronic products and in order to boost, promote and [CASE NUMBER] expand the market of its product through advertisement hired the services of respondent no1, who acted as agent of defendant no2 to advertise the products of the defendant no2 company through cable TV. Defendant no1 approached the plaintiff company and on written requests of defendant no1 vide release orders plaintiff company advertised products of defendant no2 through its cable network and the plaintiff company raised invoices on defendants from time to time but did not insist for advance payment and allowed defendants to liquidate the invoice amount immediately on raising of the invoice. Defendants were aware that if the invoices so raised by the plaintiff company remains unpaid then interest @ 12% was to be paid by defendants on the outstanding payment. Despite receiving invoices of plaintiff company, defendants not only acknowledged their liability, but also manifested their intention to discharge the same but did not liquidate the amount of invoices. As on December 2007, sum of Rs. 7,78,520/ was lying outstanding in respect of various invoices so raised by the plaintiff company from time to time on the defendants and in addition to the above principle amount which includes service tax and cess on services tax as applicable, so defendants were also liable to pay sum of Rs. 1,06,044/ towards interest which had [CASE NUMBER] been calculated @ 12% per annum. Plaintiff claimed that defendants jointly, collectively and severally were liable to pay sum of Rs. 8,84,564/ to plaintiff company. Plaintiff company repeatedly and continuously had sent statement of account to the defendants but despite requests and legal notice dated 22.11.2007, which was withdrawn and due to typographical error and later notice dated 29.01.2008 sent to defendants, the defendants did not pay the sum payable to plaintiff. Reply dated 05.12.2007 was sent by defendant no1 to plaintiff but payment was not made to plaintiff to liquidate the outstanding dues. Resultant was the suit, since products of defendant no2 were advertised in Delhi and NCR and the release orders were received by plaintiff company at Delhi.
2. In the filed written statement, defendant no1 took preliminary objections viz., (i) suit was based on false, frivolous and illegal claim; (ii) present suit was filed against a company named Grass Link Pvt. Ltd. as defendant no1, whereas the invoices and release order attached with the plaint bears the name "[ENTITY]" in place of agency name; (iii) present suit was not being against the defendants name as mentioned in the resolution; (iv) plaintiff was not [CASE NUMBER] sure about the transactions entered with the defendant as there were contradictions between two legal notices, difference in facts and figures of the claim and difference in the parties to the suit; (v) plaintiff had gone beyond all ethics and business norms where the plaintiff has included the amount for release orders in its statement which were specifically cancelled due to the act and conduct of the plaintiff becoming unethical, fraudulent and deceitful. The cancellation letters for such release Orders No. 152 and 070 were handed over to the plaintiff on dated 15.01.2007 and 14.11.2006, respectively under their acknowledgment; (vi) there was no system of accounting between the plaintiff and the defendant where the clients of the defendant were separately accounted for. Defendant no1 also alleged that by adopting unfair, fraudulent means the plaintiff did not run the advertisement for the ordered time and duration in the given size and consequently not only cheated and deceived the answering defendant but also destroyed the reputation of the answering defendant in the eyes of its valuable clients leading to loss of business, money and profit. Also was averred that without running of those advertisement, the filed invoices of plaintiff cannot be treated as due by any stretch of interpretation till the time advertisements were displayed. Those [CASE NUMBER] provisional invoices can be treated to be due only on presentation of the monitoring report and disc as promised by the plaintiff and established rule in electronic media advertising. It was also averred by defendant no1 that the requirement of monitoring report from an independent agency and disc was all the more important because of the own act and conduct of the plaintiff which always depicted glaring evidence of fraud and cheating by the plaintiff to the defendant. The time, duration and other details provided by the plaintiff in the beginning by way of their in house telecast certificates were totally false. Plaintiff kept on issuing fake and baseless certificates to the defendant no1. Different certificates were issued by plaintiff on different dates for the same advertisement and the details mentioned therein kept on differing which made all the more important for the plaintiff to provide the disc and monitoring report. The act and conduct of the plaintiff reflected in their various telecast certificates reflecting the fraud was always pointed out to the plaintiff and plaintiff always assured defendant no1 that plaintiff would provide an independent monitoring report which will be the concrete proof on their behalf. Copies of some of the telecast certificates with respect to LG products, reflecting the glaring fraud by the plaintiffs were enclosed [CASE NUMBER] with the written statement of defendant no1. Defendant no1 also averred that till December 2007, it had made a total provisional payment of Rs. 91,19,190/ against which the plaintiff had miserably failed to provide the monitoring report and discs evidencing running of advertisement ordered by defendant no1 on its cable feed network except the nine (9) CDs provided for some of the advertisements in February and March 2006, which also proved to be short running on testing. Rest of the averments of the plaint were specifically and categorically denied. Defendant no1 prayed for dismissal of the suit with heavy costs.
3. Defendant no2 filed separate written statement taking preliminary objections viz., (i) suit was bad for misjoinder of defendant no2; (ii) there was no privity of contract between the plaintiff and defendant no2 and suit is barred under [SECTION] of [ACT]; (iii) there was no cause of action and plaintiff never dealt with answering defendant at any point of time directly or indirectly; (iv) this court had no territorial jurisdiction; (v) the entire claim was based on advertisement allegedly done by the plaintiff on the request of defendant no1; (vi) the suit had not been signed, instituted and verified by duly authorized and [CASE NUMBER] competent person; (vii) the suit is an afterthought, misconceived, vague and nonspecific qua defendant no2 and the averments made in the plaint are inconsistent and are at variance with the documents placed on record by the plaintiff; (viii) the description of the answering defendant in the memo of parties is incorrect and inaccurate and the liability, if any against the defendants cannot be fastened against TCL India Holdings Pvt. Ltd. Defendant no2 averred that it never appointed defendant no1 as its agent nor any invoices were raised upon defendant no2. More so, defendant no2 was not liable to pay any sum claimed by plaintiff as principle or interest while the statement of account relied by the plaintiff was not maintained as per requirements of accounting practice which is followed in the business to be carried by the plaintiff nor such statement reflect the true and correct factual status. Defendant no2 averred that plaintiff had no business relation with defendant no2 in any manner nor defendant no2 had made any payment to plaintiff in respect of advertisement, claimed to have been carried out on the cable feed on the request of defendant no1 pertaining to products of defendant no2. Defendant no2 averred that legal notice dated 22.11.2007 was not served upon it by the plaintiff, whereas notice dated 29.01.2008 was clearly [CASE NUMBER] motivated and was issued to plug the loop holes before instituting the present frivolous suit against defendant no2. Defendant no2 sent reply dated 22.02.2008 denying its liability or responsibility regarding alleged payment outstanding. Defendant no2 has prayed for dismissal of the suit with exemplary costs.
4. Plaintiff filed replications to the written statements of the defendants to controvert the contentions of the written statement and to reiterate the averments of the plaint. Plaintiff denied to have received any purported cancellation letters from defendant no1. Plaintiff also averred that the defendants were provided with the disc and monitoring report from time to time and all the proofs in respect of running advertisement as per the details of release order were duly handed over to defendants for their satisfaction. Plaintiff also averred that invoices raised by the plaintiff company were final invoices and it was in the knowledge of defendants that they had to discharge the invoice amount immediately on presentation but defendants did not liquidate the invoice amount. Plaintiff also averred that defendant no1 had discharged part liability of Rs. 91,19,190/ which it owed to the plaintiff company and said payment [CASE NUMBER] was not provisional in nature.
5. From the pleadings of the parties, following issues were framed by my Ld. Predecessor vide order dated 27.05.2008 : ISSUES
1) Whether the suit has been signed, verified and instituted by a duly authorized and competent person? OPP
2) Whether this court has territorial jurisdiction to entertain and try the suit?
3) Whether there is privity of contract between plaintiff and defendant no2 and the latter is unnecessary party? OPP
4) Whether the suit suffers from mis description of defendants? If so to what effect? OPD
5) Whether plaintiff did not run the [CASE NUMBER] advertisements for the ordered time, duration and in the given size nor submitted monitoring report and disc alongwith invoices? If so to what effect? OPD1
6) Whether the claim has been filed by plaintiff to deceive the defendant by adopting fraudulent means and therefore, not maintainable? OPD1
7) Whether the plaintiff is entitled to recover the suit amount with interest from the Defendants? OPP
8) Relief.
6. Plaintiff examined its Territory Manager Sh. [ENTITY] vide affidavit Ex PW1/1. PW1 relied upon documents i.e., (i) certificate of incorporation exhibited as Ex PW1/A; (ii) resolution dated 14.01.2012 exhibited as Ex PW1/B; (iii) releasing order and invoices exhibited as Ex PW1/C1 to C10; (iv) copy of statement of account exhibited as Ex PW1/D; (v) copy of individual statement of account of defendant no2 exhibited as Ex PW1/E; (vi) legal notice dated 29.01.2008 exhibited as [CASE NUMBER] Ex PW1/H; (vii) postal receipts exhibited as Ex PW1/I (colly) and Ex PW1/J, respectively; (viii) acknowledgment cards exhibited as Ex PW1/K (colly); (ix) reply of defendant no.1 dated 05.12.2007 exhibited as Ex PW1/L. PW1 was crossexamined.
7. Defendant no. 1 examined its Director Sh. [ENTITY] as DW1 vide affidavit Ex DW1/X. DW1 relied upon documents i.e., (i) certified copy of resolution dated 10.03.2008 exhibited as DW1/A; (ii) telecast certificates as provided by plaintiff and admitted by authorized representative of plaintiff exhibited as Ex DW1/B and Ex DW1/CC. DW1 was crossexamined.
8. I have heard arguments addressed by Sh. [ENTITY], Ld. counsel for plaintiff, Sh. [ENTITY] and Sh. [ENTITY] Ld. counsels for defendant no.1 and have given thoughts to the rival contentions put forth, pleadings of the parties, evidence, written arguments of defendant no1 and have also examined the record of the case. Ld. counsel for parties argued in terms of the pleadings of the parties. Ld. Counsel for defendant no1 also argued that authorization [CASE NUMBER] vide resolution dated 04.02.2008 by plaintiff company was to file case against M/s Grass Link and not against defendant no1 company, so against arraigned defendants there was no authorization to file a suit. Also was argued that merely because release order covered areas of advertisement at multiple places including New Delhi, will not confer jurisdiction upon all the Courts wherever the advertisements were ordered to be run, since defendant no1 was situated at Noida and the release orders were issued upon plaintiff's office situated in Ghaziabad at the relevant time. Also was argued that between plaintiff and defendant no2 there was no privity of contract and defendant no2 was unnecessary party. There was misdescription of defendants in the suit. Plaintiff did not run the advertisement for the ordered time, duration and on the given size nor submitted monitoring report and disc with the invoice nor proved the same. Simply to make wrongful gains, suit has been wrongly filed by plaintiff and it was prayed that suit be dismissed.
9. My issue wise findings are as under : [CASE NUMBER] Findings on Issues No(1) & (4)
1) Whether the suit has been signed, verified and instituted by a duly authorized and competent person? OPP
4) Whether the suit suffers from mis description of defendants? If so to what effect? OPD Suit was filed by Sh. [ENTITY] with his affidavit. Resolution Ex PW1/B of plaintiff company is inter alia in favour of Sh. [ENTITY], wherein he has been authorized to file and represent the company in civil suit against "M/s Grass Link" and "T.C.L. Electronics"
but not against arraigned defendant no1 "M/s [ENTITY]" It is own admitted case of plaintiff that it had been receiving release orders of defendant no1 from time to time and had been advertising the products accordingly. It is not the case where the plaintiff company was not aware of the full, correct and complete name of defendant no1. "M/s Grass Link" per se does not suggest it to be name of a private limited company, for want of mention of "Private Limited [CASE NUMBER] Company". Though the plaint has been signed, verified and instituted by duly authorized and competent person, namely, Sh. [ENTITY], but there was no resolution of plaintiff company to file case against arraigned defendant "M/s [ENTITY]". Besides that written statement of defendant no2 clearly embodies the fact of name of defendant no2 to be actually "TCL India Holdings Pvt. Ltd." and not "TCL Electronics Pvt. Ltd." In crossexamination PW1 admitted that TCL Electronics India Ltd and TCL India Holdings Pvt. Ltd. are two separate and distinct identities. Accordingly, there is misdescription of defendants in the plaint. Issue no1 is decided in favour of plaintiff. Issue no4 is decided in favour of defendants and against the plaintiff accordingly.
Findings on Issue No(2) Whether this court has territorial jurisdiction to entertain and try the suit? OPP
10. It is the case of plaintiff that release orders were received by plaintiff company at Delhi, products were so advertised inter alia in Delhi, invoices were raised at Delhi, though, the address of defendant [CASE NUMBER] no1 is of Noida. DW1 in crossexamination admitted that release orders with respect to present case pertain to advertisements released in Delhi and NCR and invoices received by them were in respect of release orders. In view of the elicited averment aforesaid of order placed in Delhi and advertisements having inter alia run in Delhi, the part of cause of action has arisen in Delhi. This court has territorial jurisdiction to try the suit. Issue no2 is decided in favour of plaintiff accordingly.
Findings on Issue No(3) & (5)
3) Whether there is privity of contract between plaintiff and defendant no2 and the latter is unnecessary party? OPP
5) Whether plaintiff did not run the advertisements for the ordered time, duration and in the given size nor submitted monitoring report and disc alongwith invoices? If so to what effect? OPD1
11. It is admitted case of PW1 and DW1, borne out from their deposition that there was no privity of contract between plaintiff [CASE NUMBER] company and defendant no2 company. Plaintiff had claimed that it performed the contract and rendered the services for the invoices claimed, so was entitled for recovery of sum claimed with interest from defendants since defendant no2 fully enjoyed the benefits of services rendered by plaintiff, as per orders placed by defendant no1, which was not a gratuitous act of plaintiff, so plaintiff was entitled for recovery of sum claimed from defendant no2 as well, though plaintiff had never entered into contract with defendant no2 directly.
12. For invocation of [SECTION] of [ACT], there are following three pre conditions as per law laid in the case of [PRECEDENT] and followed in the case of [PRECEDENT] : "The first condition is that a person should lawfully do something for another person or deliver something to him. The second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously; and the third is that the other person for whom something is done or to whom something is [CASE NUMBER] delivered must enjoy the benefit thereof. When these conditions are satisfied [SECTION] (of [ACT] imposes upon the latter person, the liability to make compensation to the former in respect of or to restore the thing so done or delivered."
Plaintiff has placed on record copies of five release orders of defendant no1 i.e. Ex PW1/C1, Ex PW1/C3, Ex PW1/C5, Ex PW1/C7 and Ex PW1/C9 besides the copies of five release orders cum invoices, issued by plaintiff i.e. Ex PW1/C2, Ex PW1/C4, Ex PW1/C6, Ex PW1/C8 and Ex PW1/C10, whose details are as follows: Release order issued by Defendant no1 Release order cum invoice issued by Plaintiff S. Exhibit No. Date Period of S. Exhibit Date Period of No. advertisement No. No. advertisement
1. PW1/C1 13.9.06 13.9.06 1. PW1/C2 14.9.06 13.9.06 to to 12.10.06 12.10.06
2. PW1/C3 13.10.06 13.10.06 2. PW1/C4 13.10.06 13.10.06 to to 12.11.06 12.11.06
3. PW1/C5 10.11.06 12.11.06 3. PW1/C6 11.11.06 12.11.06 to to 11.12.06 11.12.06 [CASE NUMBER]
4. PW1/C7 Nil 13.12.06 4. PW1/C8 12.12.06 13.12.06 to to 12.01.07 12.01.07
5. PW1/C9 13.01.07 14.01.07 5. PW1/C10 13.01.07 13.01.07 to to 13.02.07 12.02.07 The facts elicited in table above clearly depict the issuance of release ordercuminvoices Ex PW1/C2, Ex PW1/C4, Ex PW1/C6, Ex PW1/C8 and Ex PW1/C10 by plaintiff either on the date of start of the period of advertisement or on the next day of start of period of advertisement or a day prior to start of advertisement. It makes it ample clear that on the dates of issuance of these release orderscuminvoices by plaintiff, advertisements detailed in these invoices were not so run at the time when such release ordercuminvoices were so issued by plaintiff. In the replication to written statement of defendant no1, it is the claim of plaintiff that plaintiff had provided the defendants with the disc and monitoring report of the advertisements run from time to time and all the proofs in respect of running of advertisement as per the details of release orders were duly handed over to defendants. Plaintiff/PW1 has failed to prove by any documentary evidence of having delivered either (i) disc; [CASE NUMBER]
(ii) monitoring report of advertisements; and (iii) any other proof in respect of running of advertisement as per details of release orders Ex PW1/C1, Ex PW1/C3, Ex PW1/C5, Ex PW1/C7 and Ex PW1/C9, released by defendant no1 to plaintiff. Neither disc nor monitoring report nor any proof in respect of advertisement run by plaintiff in compliance of release orders Ex PW1/C1, Ex PW1/C3, Ex PW1/C5, Ex PW1/C7 and Ex PW1/C9 has been placed on record by plaintiff nor proved it through its sole examined witness PW1 or from cross examination of DW1.
13. PW1 in the course of crossexamination clearly elicited that he did not have any copy of CD or any other evidence at present to prove that the advertisements as per the release order were run on their channel. PW1 was not sure whether the plaintiff could produce any CD or evidence before the court. PW1 candidly admitted that they did not have any monitoring report for the advertisement as per release orders by the defendant. PW1 further stated that he did not have anything except the telecast certificate issued by them to prove that advertisement as per release order were run on their cable but no such telecast certificate [CASE NUMBER] issued by plaintiff company were filed nor proved. 28 telecast certificates Ex DW1/B to Ex DW1/CC, filed by defendant no1 proved by DW1 were in respect of telecast of the advertisements of products of LG and not with respect to advertisements of defendant no2.
14. In this fact of the matter in view of afore elicited evidence on record, the plaintiff company has miserably failed to prove any of the three conditions as laid in case of B.K. Mandal & Sons (supra), and followed in case of Hansa Vision Pvt. Ltd. (supra), elicited above for having run advertisements of defendant no2 on release orders in question of defendant no1, by any cogent evidence, oral or documentary, on record.
15. In view of discussions above, [SECTION] of [ACT] cannot be invoked for want of existence of elicited three pre conditions. There existed no privity of contract between plaintiff and defendant no2. PW1 admitted that plaintiff had never directly dealt with defendant no2 company. Plaintiff did not run the advertisement for the ordered time, duration and in the given size nor submitted monitoring report and disc [CASE NUMBER] with the invoices or later. PW1 also admitted that plaintiff never raised any payment or bills upon defendant no2 and even defendant no2 had never placed any order for advertisement upon plaintiff. Issues no. 3 and 5 are accordingly decided against the plaintiff and in favour of defendants.
Findings on Issue No(6) & (7)
6) Whether the claim has been filed by plaintiff to deceive the defendant by adopting fraudulent means and therefore, not maintainable? OPD1
7) Whether the plaintiff is entitled to recover the suit amount with interest from the Defendants? OPP
16. PW1 in the course of his crossexamination admitted that they had never sent balance sheet/statement of account to defendant no2. Also, PW1 admitted that TCL Electronics India and TCL India Holdings Pvt. Ltd. are two separate entities. PW1 candidly admitted in his cross examination that he had never dealt with either defendant no1 or defendant no2 but since he had gone through all communications [CASE NUMBER] between plaintiff and defendant no1, so he had filed the affidavit Ex PW1/1 on basis of such communications. Plaintiff company has not examined its employee, official or Director, who had any dealings with either defendant no1 or defendant no2 with respect to release orders for advertisements, alleged to be placed upon plaintiff by defendant no1 for and on behalf of defendant no2 to testify in accordance with [SECTION] of [ACT] (in short [ACT]). PW1 could not elicit what all companies advertisement were given by defendant no1 except Hair Appliances, TCL and LG electronics.
17. PW1 in affidavit Ex PW1/1 had stated that the statement of account Ex. PW1/D was of defendant no1 in ledger of books of plaintiff company. 15 pages statement of account Ex PW1/D (AnnexureD of plaint) per se is a computer generated document, on top of which is mentioned "WinAdvt. (0506) AB6, Safdarjung Enclave, New Delhi110029" and purportedly pertains to ledger account of defendant no1 of period from 01.04.2006 to 31.12.2006 in the books of plaintiff company. On all 15 pages of Ex PW1/D, there is stamp impression of plaintiff company but none of such pages of Ex. PW1/D are signed by [CASE NUMBER] any person, what to say of authorized person nor is there any certificate of it being true copy of the ledger account nor it is accompanied by any requisite certificate under [SECTION] of [ACT] incorporating pre requisites of [SECTION] of [ACT].
18. In the case of [PRECEDENT], [CASE NUMBER], decided by Supreme Court on 18/09/2014, it was held by three Judges Bench of Supreme Court that any documentary evidence by way of an electronic record under the [ACT], in view of [SECTION] and [SECTION] of said Act, can be proved only in accordance with the procedure prescribed under [SECTION] of said Act; [SECTION] deals with the admissibility of the electronic record and the purpose of these provisions is to sanctify a secondary evidence in electronic form, generated by a computer. It was also held that electronic records are more susceptible to tampering, alteration, transposition, excision, etc., so without safeguards taken to ensure the source and authenticity, the whole trial based on proof of electronic records can lead to travesty of justice. Also was held that the [ACT] does not contemplate or permit the proof of an electronic record by oral evidence [CASE NUMBER] if requirements under [SECTION] of The [ACT] are not complied with. Following are the four specified conditions under [SECTION] of the [ACT]: (i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer; (ii) the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity; (iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and (iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. It was also held in aforesaid precedent that under [SECTION] of the [ACT], if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied: (a) there must be a certificate [CASE NUMBER] which identifies the electronic record containing the statement; (b) the certificate must describe the manner in which the electronic record was produced; (c) the certificate must furnish the particulars of the device involved in the production of that record; (d) the certificate must deal with the applicable conditions mentioned under [SECTION] of the [ACT]; and (e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It was also held in aforesaid precedent that the evidence relating to electronic record, being a special provision, the general law on secondary evidence under [SECTION] read with [SECTION] of The [ACT] shall yield to be same; Generalia specialibus non derogant, special law will always prevail over the general law. It was also held that [SECTION] and [SECTION] of The [ACT] have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by [SECTION] and [SECTION] of The [ACT], so to that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by the Supreme Court in case of [PRECEDENT] does not lay down the correct legal [CASE NUMBER] position, which requires to be overruled and was accordingly overruled. It was also held that an electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under [SECTION] of The [ACT] are satisfied. It was also held that in the case of CD, VCD, chip, etc., the same shall be accompanied with the certificate in terms of [SECTION] of The [ACT] obtained at the time of taking of document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
19. Accordingly, for want of requisite certificate under [SECTION] of [ACT] containing pre requisites of SubSection (2) and (4) of [ACT], the secondary evidence of Ex PW1/D, pertaining to the electronic record is inadmissible, in terms of law laid in the case of [ENTITY] (supra).
20. In affidavit Ex PW1/1, PW1 also referred document Ex PW1/E (AnnexureE of plaint) to be the individual statement of account of defendant no2. Bare perusal of above document given Ex PW1/E, simply reveals it to be the computation in tabular form containing five entries with client name TCL AC and TV and bears stamp impression of [CASE NUMBER] plaintiff company but no signatures, no certification, nor is accompanied by any certificate under [SECTION] of [ACT] nor finds any mention on it being a true copy of ledger account in the books of plaintiff company depicting the ledger account of defendant no2. It would not be out of place to mention that in terms of [SECTION] of the [ACT] neither on the first date of appearance after filing of the plaint nor later at any stage of the matter, plaintiff produced the books of account containing the ledger account of defendant no1 or of defendant no2 in its books, with respect to which PW1 claimed that Ex PW1/D and Ex PW1/E were such copies of the statements of accounts of defendant no1 and defendant no2.
21. The release orderscuminvoices Ex PW1/C2, Ex PW1/C4, Ex PW1/C6, Ex PW1/C8 and Ex PW1/C10 were issued in advance by the plaintiff and no cogent evidence has been led by the plaintiff that it had run the advertisements in terms of the release orders Ex PW1/C1, Ex PW1/C3, Ex PW1/C5, Ex PW1/C7 and Ex PW1/C9 placed by defendant no1 upon plaintiff. It is proved on record that the claim had been filed by the plaintiff to deceive the defendants [CASE NUMBER] and plaintiff cannot be held entitled to recover the sum claimed in the suit or the interest there upon. Issues no6 and 7 are accordingly decided in favour of defendants and against the plaintiff.
RELIEF
22. In view of findings on above issue no. 3 to 7, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly and file be consigned to record room.
Announced in open Court on 5th Day of June, 2015.
([ENTITY]) Addl. Distt. Judge(Central)01, (AD) Tis Hazari Courts, Delhi. [CASE NUMBER]