Commercial suit for recovery of advance payment with interest and damages
Cites the IPC, CrPC or Evidence Act. For matters from 1 July 2024, use the BNS, BNSS or BSA.
0 of 117 blanks filled
Court name and district
C.S. (COMM) NO. Commercial suit number OF Year of filing of the suit
IN THE MATTER OF:-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' names: DEFENDANTS
I N D E X
S. No.PARTICULARS
1.COURT FEE
2.LIST OF DATES
3.MEMO OF PARTIES
4.SUIT FOR RECOVERY ALONG WITH INTEREST AND COSTS OF SUIT
5.AFFIDAVIT OF STATEMENT OF TRUTH
6.LIST OF DOCUMENTS ALONG WITH DOCUMENTS
7.AFFIDAVIT UNDER ORDER XI RULE 6(III) OF THE COMMERCIAL COURTS ACT, 2015 R/W SECTION 65B OF THE INDIAN EVIDENCE ACT, 1872
8.VAKALATNAMA
PLAINTIFF
THROUGH
Counsel's name and address
DATED: Date of signing of the plaint
Off:- Counsel's office address
Counsel's address line
Ph: Counsel's phone number
Email: Counsel's email address
SYNOPSIS
1.That the Plaintiff is a limited liability company registered under the laws of the UAE and is engaged in the business of handbags and leather products, footwear, wearing apparel and garments. The present suit is being filed through Sh. Authorised representative's name, who is the Authorised Representative of the Plaintiff and has been authorised vide Board Resolution dated Board resolution date of the Plaintiff to file, institute, sign and verify the present suit and to initiate other appropriate proceedings. Sh. Authorised representative's name is fully conversant with the facts and circumstances of the captioned suit, including all transactions and communications with the Defendants, and is therefore competent to depose to and verify the facts for the purpose of filing the present suit on behalf of the Plaintiff.
2.That Defendant No. 1 is the proprietor of the firm M/s Defendant firm's name, and Defendant No. 2 is the Manager and Authorised Signatory of the said firm and is actively engaged in its business. Defendant No. 3, acting on behalf of Defendants No. 1 and No. 2, enticed the Plaintiff into the nefarious design orchestrated by the Defendants. Defendants No. 2 and No. 3 have been involved in, and have coordinated with the Plaintiff throughout, the transactions between the Plaintiff and the firm through the Defendants.
3.That the Plaintiff was looking for the supply of wearing apparel and garments for sale in the UAE. The Plaintiff, through Agent company's name (a body corporate registered under the Companies Act, 2013) acting as its agent, came into contact with Defendants No. 1 and No. 2. Defendants No. 1 and No. 2 represented that they had sufficient manpower, raw materials and machinery to supply goods (categorised under respective styles) in bulk without delay, in accordance with the original samples provided by the Plaintiff. The Plaintiff, through its representatives, conveyed to the Defendants that the goods would be sold in the UAE and that the sale of garments and wearing apparel is season-specific; therefore, the supply of the goods would be required in a timely manner, and in the event of any delay, the Plaintiff would suffer a loss of opportunity. The Defendants again assured the Plaintiff that they were well equipped with raw materials, machinery and manpower to cater to the Plaintiff's requirements. Thereafter, the Plaintiff and the Defendants entered into negotiations, and it was mutually agreed that:
(a)The Plaintiff shall place a purchase order along with the original clothing articles, Original clothing articles description, of the relevant styles with the Defendants, and the Defendants shall manufacture the exact replicas, Replica samples description, of the said original articles and furnish the same as samples of the respective styles for approval and inspection by the Plaintiff against the standards and specifications communicated by the Plaintiff.
(b)Pursuant to the approval of the samples, the Defendants shall manufacture the finally approved samples in the quantities Quantities of approved samples mentioned in the respective purchase orders placed by the Plaintiff with the Defendants.
(c)Thereafter, the Defendants shall ship the goods to the port of loading in a timely manner.
(d)The Plaintiff shall get a Letter of Credit issued in favour of the Defendants equivalent to the value of the goods ordered under the respective purchase order; and
(e)The applicable INCOTERM shall be FOB (Free on Board), i.e., the Defendants shall be obligated to ensure the safe transit of the goods to the relevant carrier at the port of loading from the premises of the firm.
4.It is pertinent to mention that under the INCOTERM FOB, it is the duty of the seller to ensure the safe transit of the goods to the port of loading via the carrier, and liability for the goods up to their loading at the relevant port rests upon the seller itself.
5.That, in light of the aforesaid understanding, the Plaintiff placed three purchase orders based on the approved styles with the firm, whereupon Defendant No. 2, on behalf of the firm, issued three proforma invoices. It is pertinent to mention that the said proforma invoices issued by Defendant No. 2 on behalf of the firm made categorical reference to the respective purchase orders, which incorporated the INCOTERM FOB; hence, the said INCOTERM was binding upon the firm.
6.That, pursuant to the corrections requested by the Plaintiff in the samples, the Plaintiff confirmed some of the styles shared by the Defendants, whereupon the Defendants, on the pretext of facing commercial constraints, proposed to alter the payment terms from Letter of Credit at sight to 50% advance and the remaining 50% against the bill of lading. The Plaintiff, in utmost good faith, agreed to the said alteration in the payment terms. Defendant No. 2, on behalf of the firm, issued a revised proforma invoice dated Date of revised proforma invoice for a sum of Amount of revised proforma invoice against the partial supply of goods stated in the purchase orders dated Date of first purchase order and Date of second purchase order, and incorporated the aforesaid revised payment terms. It is pertinent to mention that the reference to the purchase orders dated Date of first purchase order and Date of second purchase order in the revised proforma invoice dated Date of revised proforma invoice indicates that the firm was under an obligation to ship the goods to the port at Port of loading.
7.That, accordingly, the Plaintiff paid the firm a 50% advance amounting to Amount of 50% advance payment vide SWIFT transaction dated Date of SWIFT transaction, and Defendant No. 2 duly acknowledged receipt of the said 50% advance amount. As such, the representatives of the firm were under an obligation to ship the goods to the port at Port of loading. However, despite having received the 50% advance amount, the Defendants, for reasons best known to themselves, have failed to ship the goods to the port at Port of loading, which has resulted in a loss of opportunity and has defeated the business objectives of the Plaintiff.
8.That, after the Plaintiff made payment of the 50% advance amount, the mala fide conduct of the Defendants became evident, whereby they deliberately delayed the shipment of the goods to the port at Port of loading on one pretext or another, citing sub-standard quality issues with the samples. Thereafter, the Defendants, on the pretext of having invested in raw materials for the manufacture of the goods, sought the 50% advance amount to assist them in their financial constraints. Subsequent to securing the 50% advance amount from the Plaintiff, the Defendants, shockingly, demanded payment of the entire 100% of the value of the approved styles prior to shipment thereof. The Plaintiff was taken by surprise by the conduct of the Defendants.
9.That, evidently, from the aforesaid facts, the commercial interests of the Plaintiff have been gravely prejudiced by the Defendants, who have illegally retained the 50% advance amount paid against the proforma invoice dated Date of revised proforma invoice, and the Plaintiff has suffered a loss of opportunity consequential upon the unwarranted delay in shipping the goods to the port at Port of loading, which is solely attributable to the malicious conduct of the Defendants. Moreover, Defendant No. 2, on behalf of the firm, issued a false and frivolous legal notice to pressurise the Plaintiff into acceding to his illegal demands. Owing to the fraud practised by the representatives of the firm, the contractual modalities arrived at between the Plaintiff and the firm stand rescinded.
It is stated that as on date, the Defendants are liable to repay the advance amount of $Advance payment amount/- [In words: advance payment amount] along with interest at 15% and damages, so as to make good the loss of opportunity consequential upon the delay in shipment of the Goods to the port at Destination port, which delay is solely attributable to the Defendants. As such, the Plaintiff is constrained to file the present suit to rescind the contractual arrangements arrived at between the Plaintiff and the representatives of the Firm, and to seek recovery of the advance amount along with interest and damages payable by the Defendants to the Plaintiff.
That the Plaintiff has been regularly attempting to contact the Defendants and has sought meetings with their officials and representatives on several occasions; however, all such requests of the Plaintiff have gone in vain. That despite numerous requests made by the Plaintiff, the Defendants, acting with a mischievous and malafide intent from the very outset, have repudiated the requests of the Plaintiff. That till date, the Plaintiff has been made to suffer substantial financial losses, including loss of opportunities, which has caused severe hardship to the Plaintiff, for which the Defendants are jointly and severally legally liable.
That the axiomatic fact emerging from the above clearly shows that the Defendants have cheated the Plaintiff with dishonest and malafide intentions. Thus, the Defendants have caused wrongful loss to the Plaintiff and wrongful gain to themselves, and have accordingly committed offences under several other provisions of the Indian Penal Code.
That aggrieved by the deceitful and deliberate acts of the Defendants and their failure to repay the advance amount due and payable, the Plaintiff was constrained to cause issuance of a legal notice dated Legal notice date (hereinafter referred to as the "Legal Notice") to the Defendants (vide email and speed post), whereby the Plaintiff called upon the Defendants to make payment of the amount due and payable to the Plaintiff; however, to no avail, as the Defendants failed even to reply to the said Legal Notice.
That despite the Plaintiff having requested the Defendants on several occasions for payment, as aforesaid, the Defendants have failed and neglected to make the payment due from them. The Plaintiff is thus left with no other option but to approach this Hon'ble Court for recovery of the outstanding amount.
That with the passage of time, to the dismay of the Plaintiff, the Defendants defaulted in making payment and failed to repay the amount due and payable to the Plaintiff, despite numerous requests advanced by the Plaintiff. That in view of the Defendants' default in making payment, the Plaintiff repeatedly raised requests seeking repayment of the advance amount; however, the Defendants kept deferring the matter on one pretext or the other and failed to remit the amount due to the Plaintiff.
That the Plaintiff is thus left with no other option but to approach this Hon'ble Court for recovery of the outstanding amount. Hence, the present suit.
LIST OF DATES & EVENTS :-
Letter of Credit issue dateOn or around Letter of Credit issue date, the Plaintiff, acting upon the representations and assurances advanced by the Defendants, caused a Letter of Credit to be issued for a sum of $Letter of Credit amount/- [In words: letter of credit amount] against Purchase Order S. No. 1 dated Date of first purchase order, and communicated the same to the Defendants. It is pertinent to mention that the Defendants were under an obligation to prepare the Samples in accordance with the agreed requirements and standards of the Plaintiff, and upon approval of the Samples, to manufacture the Goods being the approved styles and to ship them to the port at Destination port, as mutually decided between the parties, in a timely manner. It is also pertinent to mention that the Defendants assured shipment of the approved Number of approved styles styles (as per the original samples provided by the Plaintiff) by Original shipment date to the port at Destination port, against the S. No. 1 Purchase Order dated Date of first purchase order, which was duly signed and stamped by the Plaintiff and Defendant No. 2 on behalf of the Firm. Around this time, the Plaintiff was facing numerous quality issues with the Samples furnished by the Defendants against the said S. No. 1 Purchase Order, and the same was clearly highlighted to the Defendants from time to time. Owing to such quality issues, the shipment date of Original shipment date against the S. No. 1 Purchase Order was shifted to Revised shipment date, for which the Defendants issued the proforma invoice dated Date of first proforma invoice recording the shipment date as Revised shipment date. To the shock and dismay of the Plaintiff, the Defendants, for reasons best known to them, failed to ship the Goods to the port at Destination port by Revised shipment date, as categorically assured by them vide the proforma invoice dated Date of first proforma invoice.
Date of confirmation of Letter of Credit amendmentOn Date of confirmation of Letter of Credit amendment, the Defendants confirmed to the Plaintiff the amendment of the existing Letter of Credit, instead of issuance of a fresh Letter of Credit, against the remaining two proforma invoices dated Dates of remaining two proforma invoices (totalling $Total of remaining proforma invoices). Accordingly, the value of the Letter of Credit first issued, being for a sum of $Letter of Credit amount/- [In words: letter of credit amount], was revised to $Revised Letter of Credit amount/- [In words: revised Letter of Credit amount], and the Defendants were duly informed of the same. It is pertinent to mention that the expiry date of the revised Letter of Credit was Expiry date of revised Letter of Credit, and it was anticipated that the Defendants would ship all the Goods to the port at Destination port and complete all three Purchase Orders by Expiry date of revised Letter of Credit, as the latest date of shipment mentioned in the aforesaid proforma invoices was Latest shipment date under proforma invoices.
Date of delivery of SamplesIn the meantime, the Defendants furnished Samples of the styles to the Plaintiff, and that too at a much-delayed stage; however, some of the said Samples were of sub-standard quality and of incorrect specifications, which was duly conveyed repeatedly to the Defendants through the representatives of the Plaintiff. Admittedly, the Defendants acknowledged these defects in the Samples and undertook to rectify the same. Owing to the consistent delay on the part of the Defendants in shipping the Goods to the port at Destination port in terms of the three invoices raised upon the Plaintiff, the Letter of Credit dated Letter of Credit issue date expired on Date of expiry of Letter of Credit.
Date of confirmation of stylesPursuant to the corrections requested in the Samples as pointed out by the Plaintiff, the Plaintiff confirmed a few of the styles shared by the Defendants; whereupon the Defendants, on the pretext of facing commercial constraints, proposed to alter the payment terms from Letter of Credit at sight to 50% advance and the remaining 50% against bill of lading. The Plaintiff, in utmost good faith, agreed to such alteration in the terms of payment. Defendant No. 2, on behalf of the Firm, issued a revised proforma invoice dated Date of revised proforma invoice for a sum of $Amount of revised proforma invoice/- [In words: revised proforma invoice amount] against partial supply of the goods stated in the Purchase Orders dated Date of first purchase order and Date of second purchase order, and incorporated the aforesaid revised payment terms. It is pertinent to mention that the reference to the Purchase Orders dated Date of first purchase order and Date of second purchase order in the revised proforma invoice dated Date of revised proforma invoice indicates that the Firm was under an obligation to ship the Goods to the port at Destination port.
Date of payment of advance amountAccordingly, the Plaintiff paid the Firm a 50% advance amounting to $Advance payment amount/- [In words: advance payment amount] vide SWIFT transaction dated Date of payment of advance amount, and Defendant No. 2 duly acknowledged receipt of the said 50% advance amount. As such, the representatives of the Firm were under an obligation to ship the Goods to the port at Destination port. However, despite receipt of the 50% advance amount, the Defendants, for reasons best known to themselves, have failed to ship the Goods to the port at Destination port, which has resulted in loss of opportunity and non-attainment of the Plaintiff's business goals.
20.10.2023That even more shockingly, Defendant No. 2, through his counsel, served upon the Plaintiff a false and frivolous legal notice dated 20.10.2023, which is a testament to the mala fides of the Defendants writ large and to the fraud being played by the Defendants upon the Plaintiff. It is stated that the said legal notice dated 20.10.2023 is bad in the eyes of law for the following reasons:
…2023That aggrieved by the deceitful and dilatory acts of the Defendants and their failure to repay the advance amount due and payable, the Plaintiff was constrained to issue a legal notice dated Legal notice date (hereinafter referred to as the "Legal Notice") upon the Defendants (vide email and speed post), whereby the Plaintiff called upon the Defendants to make payment of the amount due and payable to the Plaintiff. However, the Defendants failed to do so and did not even deem it fit to reply to the said Legal Notice.
….2023That the Plaintiff had filed for pre-suit mediation proceedings on/around Pre-suit mediation filing date.2023, and a non-starter report was issued thereafter. Hence, the period from Pre-suit mediation start date.2023 till Pre-suit mediation end date.2023 is also liable to be excluded for the purpose of computation of the period of limitation.
March, 2024Hence, the present suit.
IN THE COURT OF THE LD. DISTRICT JUDGE (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS, HARYANA.
C.S. (COMM) NO. Commercial suit number OF 2024
IN THE MATTER OF:-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' names: DEFENDANTS
MEMO OF PARTIES
Plaintiff's name,
having its registered office at Plaintiff's registered office address:
Plaintiff's address line
Plaintiff's address line
Through its Authorised Representative, Sh. Authorised representative's name… PLAINTIFF
VERSUS
1. Defendant No. 1's name,
Proprietor of Defendant firm's name
Available at:
Defendant No. 1's address,
Defendant No. 1's address line
2. Defendant No. 2's name,
Manager and Authorised Signatory of Defendant firm's name
Available at:
Defendant No. 2's address,
Defendant No. 2's address line
Email: Defendant No. 2's email
3. Defendant No. 3's name,
Marketing, Merchandising and Agent of Defendant firm's name
Available at:
Defendant No. 3's address,
Defendant No. 3's address line
Email: Defendant No. 3's email
… DEFENDANTS
PLAINTIFF
THROUGH
DATED: Date of signing
Off.: Counsel's office address
Counsel's address line
Ph.: Counsel's phone number
Email: Counsel's email address
IN THE COURT OF THE LD. DISTRICT JUDGE (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS, HARYANA.
C.S. (COMM) NO. Commercial suit number OF 2024
IN THE MATTER OF:-
Plaintiff's name,
having its registered office at Plaintiff's registered office address:
Plaintiff's address line
Plaintiff's address line
Through its Authorised Representative, Sh. Authorised representative's name… PLAINTIFF
VERSUS
1. Defendant No. 1's name,
Proprietor of Defendant firm's name
Available at:
Defendant No. 1's address,
Defendant No. 1's address line
2. Defendant No. 2's name,
Manager and Authorised Signatory of Defendant firm's name
Available at:
Defendant No. 2's address,
Defendant No. 2's address line
Email: Defendant No. 2's email
3. Defendant No. 3's name,
Marketing, Merchandising and Agent of Defendant firm's name
Available at:
Defendant No. 3's address,
Defendant No. 3's address line
Email: Defendant No. 3's email
… DEFENDANTS
SUIT FOR RECOVERY OF AN AMOUNT OF Suit recovery amount in words and figures ALONG WITH INTEREST, COSTS AND DAMAGES.
MOST RESPECTFULLY SHOWETH:-
1.That the Plaintiff is a limited liability company registered under the laws of the UAE and is engaged in the business of handbags and leather products, footwear, wearing apparel and garments. The present suit is being filed through Sh. Authorised representative's name, who is the Authorised Representative of the Plaintiff and has been authorised vide board resolution dated Board resolution date of the Plaintiff to file, institute, sign and verify the present suit and to initiate other appropriate actions in respect thereof. Sh. Authorised representative's name is fully conversant with the facts and circumstances of the captioned suit, including all the transactions and communications with the Defendants, and is therefore competent to depose to and verify the facts for the purpose of filing the present suit on behalf of the Plaintiff.
2.That Defendant No. 1 is the Proprietor of the firm M/s Defendant firm's name, and Defendant No. 2 is the Manager and Authorised Signatory of the said firm and is actively engaged in the business of the firm. Defendant No. 3, acting on behalf of Defendants No. 1 and No. 2, enticed the Plaintiff into the nefarious design orchestrated by the Defendants. Defendants No. 2 and No. 3 have been involved in, and have coordinated with the Plaintiff throughout, the transactions between the Plaintiff and the firm.
3.That the Plaintiff was looking for the supply of wearing apparel and garments for sale in the UAE. Accordingly, the Plaintiff, through Agent company's name (a body corporate registered under the Companies Act, 2013), acting as the agent of the Plaintiff, came into contact with Defendants No. 1 and No. 2. Defendants No. 1 and No. 2 represented that they had sufficient manpower, raw materials and machinery to supply the goods (categorised under their respective styles) in bulk without delay, in accordance with the original samples provided by the Plaintiff. The Plaintiff, through its representatives, conveyed to the Defendants that the goods were to be sold in the UAE and that the sale of garments and wearing apparel is season-specific; therefore, the supply of the goods was required in a timely manner, and in the event of any delay in supply, the Plaintiff would suffer a loss of opportunity. The Defendants again assured the Plaintiff that they were well equipped with the raw materials, machinery and manpower to cater to the Plaintiff's requirements. Thereafter, the Plaintiff and the Defendants entered into negotiations, and it was mutually decided that:
F.The Plaintiff shall place a purchase order along with the original clothing articles, Original clothing articles description, of the relevant styles with the Defendants, and the Defendants shall prepare an exact replica, Replica samples description, of the said Original Articles and furnish the same as samples of the respective styles for approval and inspection by the Plaintiff with respect to the standards and specifications stipulated by the Plaintiff.
G. Pursuant to the approval of the Samples, the Defendants shall manufacture the finally approved Samples in the quantities, Quantities of approved samples, as mentioned in the respective purchase orders placed by the Plaintiff with the Defendants.
H. Thereafter, the Defendants shall ship the Goods to the port of loading in a timely manner;
I.The Plaintiff shall cause a Letter of Credit to be issued in favour of the Defendants equivalent to the value of the Goods ordered vide the respective purchase order; and
J.The applicable INCOTERM shall be FOB (Free on Board), i.e., the Defendants shall be obligated to arrange for the safe transit shipping of the goods to the relevant carrier at the port of loading from the premises of the firm.
It is pertinent to mention that, under the INCOTERM FOB, it is the duty of the seller to arrange for the safe transit shipping of the goods to the port of loading via the carrier, and the liability for the goods remains upon the seller itself until the loading of the goods at the relevant port.
4.That, in light of the aforesaid understanding, the Plaintiff placed three purchase orders based on the approved styles with the firm, whereupon Defendant No. 2, on behalf of the firm, issued three proforma invoices, the details of which are as hereunder:
| S.no. | Purchase Order details | No. of Styles | Amount (USD $) | Proforma Invoice details | Date of Shipment | Amount (USD $) |
| 1. | Purchase order number at S. No. 1 dated Date of purchase order at S. No. 1 | Number of styles at S. No. 1 | $ Amount in USD against purchase order at S. No. 1/- | Proforma invoice number at S. No. 1 dated Date of proforma invoice at S. No. 1 | Date of shipment at S. No. 1 | $ Amount in USD against purchase order at S. No. 1/- |
| 2. | Purchase order number at S. No. 2 dated Date of purchase order at S. No. 2 | Number of styles at S. No. 2 | $ Amount in USD against purchase order at S. No. 2/- | Proforma invoice number at S. No. 2 dated Date of proforma invoice at S. No. 2 | Date of shipment at S. No. 2 | $ Amount in USD against purchase order at S. No. 2/- |
| 3. | Purchase order number at S. No. 3 dated Date of purchase order at S. No. 3 | Number of styles at S. No. 3 | $ Amount in USD against purchase order at S. No. 3/- | Proforma invoice number at S. No. 3 dated Date of proforma invoice at S. No. 3 | Date of shipment at S. No. 3 | $ Amount in USD against purchase order at S. No. 3/- |
It is pertinent to mention that the aforementioned proforma invoices issued by the Defendant No. 2 on behalf of the Firm contained a categorical reference to the respective purchase orders, which incorporated the INCOTERM FOB; hence, the said INCOTERM was binding upon the Firm.
5.On or around Date of issuance of the Letter of Credit, the Plaintiff, acting upon the representations and assurances held out by the Defendants, caused a Letter of Credit to be issued for a sum of $ Amount in USD against purchase order at S. No. 1/- In words: letter of credit amount against the Purchase Order at S. No. 1 dated Date of purchase order at S. No. 1, and communicated the same to the Defendants. It is pertinent to mention that the Defendants were under an obligation to prepare the Samples in accordance with the agreed requirements and standards of the Plaintiff and, upon approval of the Samples, to manufacture the Goods, being the approved styles, and to ship the same to the port at Mumbai, as mutually agreed between the parties, in a timely manner. It is further pertinent to mention that the Defendants assured shipment of the approved Number of styles at S. No. 1 styles (as per the original samples provided by the Plaintiff) by Original assured shipment date against S. No. 1 to the port at Mumbai, against the Purchase Order at S. No. 1 dated Date of purchase order at S. No. 1, which was duly signed and stamped by the Plaintiff and by Defendant No. 2 on behalf of the Firm. Around this time, the Plaintiff encountered numerous quality issues with the Samples furnished by the Defendants against the said Purchase Order at S. No. 1, and the same was clearly highlighted to the Defendants from time to time. Owing to such quality issues, the shipment date of Original assured shipment date against S. No. 1 against the Purchase Order at S. No. 1 was revised to Date of shipment at S. No. 1, for which the Defendants issued the proforma invoice dated Date of proforma invoice at S. No. 1 recording the shipment date as Date of shipment at S. No. 1. To the shock and dismay of the Plaintiff, the Defendants, for reasons best known to them, failed to ship the Goods to the port at Mumbai by Date of shipment at S. No. 1, as categorically assured by them vide the proforma invoice dated Date of proforma invoice at S. No. 1.
6.On Date of confirmation of amendment of the Letter of Credit, the Defendants confirmed to the Plaintiff that the Letter of Credit would be amended, rather than a fresh Letter of Credit being issued, against the remaining two proforma invoices dated Date of proforma invoice at S. No. 2 and Date of proforma invoice at S. No. 3 (totalling $ Total amount of the remaining two proforma invoices). Accordingly, the value of the Letter of Credit initially issued, being $ Amount in USD against purchase order at S. No. 1/- In words: letter of credit amount, was revised to $ Revised value of the Letter of Credit/- and the Defendants were duly informed of the same. It is pertinent to mention that the expiry date of the revised Letter of Credit was Expiry date of the revised Letter of Credit, and it was anticipated that the Defendants would ship all the Goods to the port at Mumbai and complete all three purchase orders by Expiry date of the revised Letter of Credit, as the latest date of shipment mentioned in the aforementioned proforma invoices was Date of shipment at S. No. 2. It is further pertinent to mention that the Plaintiff, through its Agent, had inspected the Samples furnished by the Defendants against the Purchase Orders at S. No. 2 and 3; however, upon such inspection, it was found that the Samples manufactured by the Defendants were of sub-standard quality and did not conform to the specifications of the Plaintiff against the Original Article, and the same was duly conveyed to the Defendants. It is not out of place to mention that the Defendants failed to adhere to the manufacturing process as per the standards and expectations of the Plaintiff, which ultimately culminated in a delay in the shipment of the required Goods to the port at Mumbai under the proforma invoices at S. No. 2 and 3 as well. Needless to state, had the Defendants shipped the Goods to the port at Mumbai within the agreed time, the Firm could have encashed the said Letter of Credit.
7.It is pertinent to mention that, owing to the delay in shipment of the Goods to the port at Mumbai within the agreed time, the Plaintiff suffered a loss of opportunity consequential to such delayed shipment, inasmuch as, had the Goods been shipped to the port at Mumbai within the agreed time, the Plaintiff could have sold the Goods manufactured by the Defendants within the optimal season and achieved its yearly business goals with the desired profits. As such, the Defendants have inflicted a loss of opportunity cost upon the Plaintiff, which is solely attributable to the unexplained delay caused by the Defendants.
8.In the meantime, the Defendants furnished Samples of the styles to the Plaintiff, and that too at a much-delayed stage; however, some of the aforementioned Samples were of sub-standard quality and of incorrect specification, which was duly and repeatedly conveyed to the Defendants through the representatives of the Plaintiff. Admittedly, the Defendants acknowledged these defects in the Samples and undertook to rectify the same. Owing to the consistent delay on the part of the Defendants in shipping the Goods to the port at Mumbai in terms of the three invoices raised upon the Plaintiff, the Letter of Credit dated Date of the Letter of Credit expired on Expiry date of the revised Letter of Credit.
9.Pursuant to the corrections requested by the Plaintiff being made to the Samples, the Plaintiff confirmed a few of the styles shared by the Defendants; whereupon the Defendants, on the pretext of facing commercial constraints, proposed to alter the terms of payment from Letter of Credit at sight to 50% advance and the remaining 50% against bill of lading. The Plaintiff, in utmost good faith, agreed to such alteration in the terms of payment. Defendant No. 2, on behalf of the Firm, issued a revised proforma invoice dated Date of revised proforma invoice for a sum of $ Amount of the revised proforma invoice for partial supply/- against the partial supply of the goods stated in the purchase orders dated Date of purchase order at S. No. 1 and Date of purchase order at S. No. 2, and incorporated the aforesaid revised payment terms. It is pertinent to mention that the reference to the purchase orders dated Date of purchase order at S. No. 1 and Date of purchase order at S. No. 2 in the revised proforma invoice dated Date of revised proforma invoice demonstrates that the Firm was under an obligation to ship the Goods to the port at Mumbai.
10.Accordingly, the Plaintiff paid the Firm a 50% advance amounting to $ Advance payment amount/- vide SWIFT transaction dated Date of SWIFT transaction, and Defendant No. 2 has also acknowledged receipt of the said 50% advance amount. As such, the representatives of the Firm were under an obligation to ship the Goods to the port at Mumbai. However, despite having received the 50% advance amount, the Defendants, for reasons best known to themselves, have failed to ship the Goods to the port at Mumbai, which has resulted in a loss of opportunity and the non-attainment of the Plaintiff's business goals.
11.Upon the Plaintiff having made payment of the 50% advance amount, the mala fide intent of the Defendants became writ large, whereby the Defendants intentionally delayed the shipment of the Goods to the port at Mumbai on one pretext or another, taking into consideration the sub-standard quality of the Samples prepared by the Defendants. Thereafter, the Defendants, on the pretext of having invested in raw materials for the manufacture of the Goods, sought the 50% advance amount to assist them in their situation of financial constraint. Subsequent to securing the 50% advance amount from the Plaintiff, the Defendants, shockingly, demanded complete payment of 100% of the value of the approved styles prior to shipment thereof. The Plaintiff was taken aback by the conduct of the Defendants.
12.The Plaintiff was taken aback by the conduct and audacity of the Defendants, whereby:
a.Firstly, the Defendants repeatedly failed to furnish the Samples in accordance with the agreed requirements and standards of the Plaintiff, and sought additional time for preparing the orders of the Plaintiff, thereby delaying the shipment of the Goods to the port at Mumbai against the assured timelines stipulated in the three purchase orders;
b.Secondly, the Defendants persuaded the Plaintiff to accept a revised understanding on the pretext of having invested in raw materials, sought 50% of the advance amount, and assured that the Goods would be shipped upon receipt of the 50% advance amount, with the remaining 50% payment to be made against the bill of lading for shipping the approved styles;
c.Thirdly, despite having received the 50% advance amount, the Defendants, instead of shipping the Goods to the port at Mumbai, refrained from doing so and demanded the entire 100% advance payment, contrary to the revised mutual understanding arrived at between the parties.
13.Even more shockingly, the Defendant No. 2, through his counsel, has served a false and frivolous legal notice dated Legal notice date sent by Defendant No. 2, which is testament to the mala fides writ large on the part of the Defendants and the fraud being perpetrated by them upon the Plaintiff. It is stated that the said legal notice dated Legal notice date sent by Defendant No. 2 is bad in the eyes of law, for the following reasons:
A. The Defendant No. 2 has wrongfully alleged that the Plaintiff extended the timelines for the process of finalisation and shipping of the garments;
B.The Defendant No. 2 has alleged that the Plaintiff failed to renew the Letter of Credit upon its expiry. It is pertinent to mention that the Defendants delayed the shipment of the Goods to the port at Mumbai from the very first instance, and it is an admitted fact that, in terms of the revised mutual understanding arrived at vide the revised proforma invoice dated Date of revised proforma invoice, the Plaintiff had made payment of the 50% advance amount; therefore, without prejudice, the obligation of the Plaintiff to renew the Letter of Credit no longer subsisted;
C.The Defendant No. 2 has maliciously drawn the inference that the Plaintiff was obliged to pick up the Goods from the premises of the Firm; however, that was never the case, inasmuch as (1) the revised proforma invoice incorporated a reference to the purchase orders, which included the FOB INCOTERM, (2) the terms of payment contained in the revised invoice dated Date of revised proforma invoice itself make it evident that the Firm was obligated to ship the Goods to the port at Mumbai, and (3) the representatives of the Firm, vide email dated Date of email confirming shipping steps, had expressly stated that they were proceeding with the requisite further steps for shipping;
D. The Defendant No. 2 has wrongly forfeited the 50% advance payment made by the Plaintiff;
E.The Defendant No. 2 has maliciously sought payment under the 1st purchase order, although it is admittedly the Defendant No. 2 himself, on behalf of the Firm, who had issued the revised proforma invoice incorporating the revised understanding, in terms whereof the Plaintiff had made the 50% advance payment; and
F.The Defendant No. 2 has illegally sought the remaining 50% of the amount under the revised proforma invoice dated Date of revised proforma invoice without shipping the Goods to the port at Mumbai, in contradiction to the Firm's own revised terms of payment.
14.Evidently, from the aforesaid facts, the commercial interests of the Plaintiff have been highly prejudiced by the Defendants having illegally retained the 50% advance amount paid against the proforma invoice dated Date of revised proforma invoice, and the Plaintiff has suffered loss of opportunity consequential upon the unwarranted delay in shipping the Goods to the port at Mumbai, which is solely attributable to the malicious conduct of the Defendants. Furthermore, the Defendant No. 2, on behalf of the Firm, issued a false and frivolous legal notice with a view to pressurising the Plaintiff into acceding to his illegal demands. Owing to the fraud played by the representatives of the Firm, the contractual modalities arrived at between the Plaintiff and the Firm stand rescinded.
15.It is stated that, as on date, the Defendants are liable to repay the advance amount of Advance amount to be recovered along with Rate of interest interest and damages, so as to make good the loss of opportunity consequential upon the delay in shipping the Goods to the port at Mumbai, which is solely attributable to the Defendants. As such, the Plaintiff is constrained to file the present suit to rescind the contractual modalities arrived at between the Plaintiff and the representatives of the Firm, and to seek recovery of the advance amount along with interest and damages, being payable by the Defendants to the Plaintiff.
16.That the Plaintiff has been regularly attempting to contact the Defendants and has sought to meet their officials/representatives on several occasions; however, all such requests of the Plaintiff have gone in vain. That despite numerous requests made by the Plaintiff, the Defendants, acting with mischievous and mala fide intent from the very outset, have repudiated the requests of the Plaintiff. That, till date, the Plaintiff has been made to suffer huge financial losses, including loss of opportunities, which has caused severe hardship to the Plaintiff, for which the Defendants are severally, jointly and legally liable.
17.That the axiomatic fact which emerges from the above clearly shows that the Defendants have cheated the Plaintiff with dishonest and mala fide intentions. Thus, the Defendants have caused wrongful loss to the Plaintiff and corresponding wrongful gain to themselves, and have thereby also committed offences under several other provisions of the Indian Penal Code.
18.That aggrieved by the deceitful and deliberate acts of the Defendants and their failure to repay the advance amount due and payable, the Plaintiff was constrained to issue a legal notice dated Legal notice date (hereinafter referred to as the “Legal Notice”) to the Defendants (vide email and speed post), pursuant to which the Plaintiff called upon the Defendants to make payment of the amount due and payable to the Plaintiff; however, to no avail, as the said Defendants failed even to reply to the said Legal Notice.
7.That the Plaintiff is entitled to recover a sum of Advance amount to be recovered along with Rate of interest interest and damages from the Defendants. The Defendants are liable to repay the said amount to the Plaintiff in view of the submissions and facts set out above.
8.That the Plaintiff requested the Defendants several times for payment, as aforesaid; however, the Defendants have failed and neglected to make the payment due from them. The Plaintiff, being left with no other option, has been constrained to approach this Hon'ble Court for recovery of the outstanding amount.
9.That, with the passage of time, and to the dismay of the Plaintiff, the Defendants defaulted in making payment and failed to repay the amount due and payable to the Plaintiff despite numerous requests made by the Plaintiff. That, in view of the default of the Defendants in making payment, the Plaintiff repeatedly raised requests seeking repayment of the advance amount; however, the Defendants kept deferring the matter on one pretext or another, and failed to remit the amount due to the Plaintiff.
10.That, till date, the Plaintiff has been made to suffer huge financial losses, including loss of opportunities, consequential upon the non-payment of the advance amount due by the Defendants, which has caused severe hardship to the Plaintiff, for which the Defendants are severally, jointly and legally liable.
11.That it is pertinent to mention that the Plaintiff, in view of the past relationship with the Defendants, had earlier chosen not to resort to any legal remedy, trusting that the amount due would be paid by the Defendants along with interest shortly; however, the Plaintiff has been constrained to pursue legal recourse as a consequence of the mala fide intentions and dishonest acts of the Defendants.
12.That the Defendants have, till date, failed to remit payment of the due amount. That the Defendants are under an obligation to pay the outstanding amount in accordance with the mutually accepted terms and conditions between the parties; however, despite the same, the Defendants have failed to honour their commitments as agreed with the Plaintiff.
13.That, without prejudice to the rights and contentions of the Plaintiff, it is pertinent to mention that the Defendants have failed to abide even by their own assurance to make payment of the amount due. The conduct and malafide intentions of the Defendants are thus writ large.
14.That the cause of action to file the present suit arose in the month of Month cause of action arose. That the cause of action for the present suit is a continuing and recurring cause of action, as the Defendants have failed to repay the advance amount of Advance amount to be recovered along with interest at the rate of Rate of interest to the Plaintiff, and the obligation of the Defendants towards the Plaintiff is still subsisting and continuing. Hence, the present suit is filed within the prescribed period of limitation.
15.That, for the purpose of the relief of recovery, the suit is valued at Advance amount to be recovered along with interest at the rate of Rate of interest per annum. The Plaintiff has paid the appropriate court fee of ₹Court fee paid (₹)/- towards the same. Further, the Plaintiff undertakes to pay any deficient court fees, if required.
16.That the captioned matter falls within the jurisdiction of this Hon'ble Court, as, pursuant to the invoices and Letters of Credit raised by the Plaintiff (and duly accepted by the Defendants), the parties had amicably agreed to confer jurisdiction upon the courts at Gurugram for the resolution of disputes between them. Furthermore, the Plaintiff is located and registered within the jurisdiction of this Hon'ble Court, and hence this Hon'ble Court has jurisdiction. That the Defendants are under an obligation to make payment to the Plaintiff at the registered office of the Plaintiff (being within this jurisdiction), and hence this Hon'ble Court has territorial jurisdiction. Moreover, the orders were placed at the registered office of the Plaintiff, meetings took place at the registered office of the Plaintiff, and the payment requests were made/raised from the registered office of the Plaintiff. Hence, this Hon'ble Court has jurisdiction, as the cause of action also arose in favour of the Plaintiff within the jurisdiction of this Hon'ble Court. That the payment requests were made by the Plaintiff to the Defendants at the registered office of the Plaintiff, which falls within the jurisdiction of this Hon'ble Court; hence, this Hon'ble Court has jurisdiction.
17.That the present suit falls within the definition of a Commercial Dispute as defined in Section 2(1)(c)(xviii) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015.
18.That the Plaintiff had filed for pre-suit mediation proceedings on/around Pre-suit mediation filing date, and the non-starter report was issued on/around Non-starter report date. Hence, the said period, starting from Pre-suit mediation start date till Pre-suit mediation end date, is also liable to be excluded for the purpose of computation of the period of limitation, and the present suit is accordingly within limitation.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to: -
a.Pass a decree in favour of the Plaintiff and against the Defendants, directing the Defendants to repay the advance amount of Advance amount to be recovered along with interest at the rate of Rate of interest, being due and payable to the Plaintiff;
b.Award interest at such rate as may be decided by this Hon'ble Court pursuant to Order VII Rule 2A of the CPC, from the date the amount fell due till the date of filing of the captioned suit, along with interest from the date of institution of the captioned suit till the date of the final decree;
c.Award/impose appropriate costs of the suit, to be payable by the Defendants, as may be decided by this Hon'ble Court pursuant to Section 35 of the CPC; and
d.Pass such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
PLAINTIFF
THROUGH
DATED: Date of signing
Off:- Counsel's office address
Counsel's address line
Ph: Counsel's phone number
Email: Counsel's email address
VERIFICATION:-
Verified at Place of verification on this Day of verification day of Month and year of verification, that the statements made in paragraphs 1 to Last paragraph number true to knowledge are true to my knowledge; the statements made in paragraphs First paragraph number based on information to Last paragraph number based on information are based on information received and believed by me to be correct; and the statements made in paragraphs First paragraph number based on legal advice to Last paragraph number based on legal advice are based on legal advice, and no part thereof is false, nor has anything material been concealed therefrom. The last paragraph contains the prayer to this Hon'ble Court.
PLAINTIFF
IN THE COURT OF THE LD. DISTRICT JUDGE (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS, HARYANA
C.S. (COMM) NO. Commercial suit number OF Year of filing of the suit.
IN THE MATTER OF:-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' names: DEFENDANTS
STATEMENT OF TRUTH
I, Deponent's name, aged about Deponent's age years, Authorised Representative of Plaintiff's name, having its office at Plaintiff's office address, presently at Deponent's current location, do hereby solemnly affirm and declare as hereunder: -
1.That I, the Deponent, am the Authorised Representative of the Plaintiff company, and hence competent to swear this Statement of Truth. That I, the Deponent, am well conversant with the facts and circumstances of the case, and hence competent to swear this affidavit.
2.That I am sufficiently conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.
3.That the statements made in paragraphs 1 to Last paragraph number true to knowledge are true to my knowledge; the statements made in paragraphs First paragraph number based on information to Last paragraph number based on information are based on information received and believed by me to be correct; and the statements made in paragraphs First paragraph number based on legal advice to Last paragraph number based on legal advice are based on legal advice, and no part thereof is false, nor has anything material been concealed therefrom.
4.That there is no false statement or concealment of any material fact, document or record, and I have included all information relevant to the captioned suit.
5.That the above-mentioned suit comprises a total of 1 to Total pages of suit pages, each of which has been duly signed by me.
6.That all documents in my power, possession, control or custody, pertaining to the facts and circumstances of the proceedings initiated by me, have been disclosed and copies thereof annexed, and I do not have any other documents in my power, possession, control or custody as of now.
7.That the Annexures hereto are true copies of the documents referred to and relied upon by me.
8.That I am aware that, for any false statement or concealment, I shall be liable for action under the law for the time being in force.
DEPONENT
VERIFICATION:-
Verified at Place of verification on this Day of verification day of Month and year of verification. That the contents of the above affidavit are true and correct to my knowledge, and nothing material has been concealed therefrom.
DEPONENT
IN THE COURT OF THE LD. DISTRICT JUDGE (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS, HARYANA
C.S. (COMM) NO. Commercial suit number OF Year of filing of the suit.
IN THE MATTER OF:-
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' names: DEFENDANTS
LIST OF DOCUMENTS
| S. No | Particulars | Details of parties to the document | Documents in power/possession/control/custody of | Original/Or/Photocopy or office copies | Mode of execution/issuance or receipt | Line of custody | Page No. |
|---|---|---|---|---|---|---|---|
| 1. | Non-Starter Report dated Non-starter report date | Plaintiff and Defendants | Plaintiff | Original | Issued by the District Legal Services Authority to the Plaintiff and received by the Plaintiff | District Legal Services Authority to Plaintiff |
| 2. | Board Resolution dated Board resolution date | Plaintiff | Plaintiff | Original | Executed by the Plaintiff | Plaintiff |
| 3. |
| 4. |
| 5. |
| 6. |
Counsel's office address
Counsel's address line
Ph: Counsel's phone number
Email: Counsel's email address
DATED: Date of signing
PLAINTIFF
THROUGH
IN THE COURT OF THE LEARNED DISTRICT JUDGE (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS, HARYANA
C.S. (COMM) NO. Commercial suit number OF 2024
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' names: DEFENDANTS
AFFIDAVIT
I, Deponent's name, aged about Deponent's age years, Authorised Representative of Plaintiff's name, having its office at Plaintiff's office address, presently at Deponent's current location, do hereby solemnly affirm and declare as hereunder:
1.That the deponent is the Authorised Representative of the Plaintiff company in the accompanying suit and is therefore competent to swear this affidavit.
2.That the accompanying suit has been drafted under the instructions of the deponent, and the contents thereof are true and correct to the best of the deponent's knowledge and belief. Nothing material has been concealed therefrom.
3.That the contents of the accompanying plaint may kindly be read as part and parcel of this affidavit, as the same are not being repeated herein for the sake of brevity.
DEPONENT
VERIFICATION
Verified at Place of verification on this Day of verification day of Month and year of verification that the contents of the above affidavit are true and correct to the best of my knowledge and belief, that no part thereof is false, and that nothing material has been concealed therefrom.
DEPONENT
IN THE COURT OF THE LEARNED DISTRICT JUDGE (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS, HARYANA
C.S. (COMM) NO. Commercial suit number OF 2024
IN THE MATTER OF:
Plaintiff's name: PLAINTIFF
VERSUS
Defendants' names: DEFENDANTS
AFFIDAVIT UNDER ORDER XI RULE 6 (III) OF THE COMMERCIAL COURTS ACT, 2015 READ WITH SECTION 65B OF THE INDIAN EVIDENCE ACT, 1872
I, Deponent's name, aged about Deponent's age years, Authorised Representative of Plaintiff's name, having its office at Plaintiff's office address, presently at Deponent's current location, do hereby solemnly affirm and declare as hereunder:
1.That I am the Authorised Representative of the Plaintiff company in the above-noted case and am well conversant with the facts and circumstances thereof, and as such I am competent to swear this affidavit.
2.That for the purposes of the present case, I have printed out the emails generated from information stored in a computer belonging to me, which is regularly used by me in the ordinary course of business.
| S. No. | Document (Electronic Record) | Parties to Electronic Record | Manner of Production of Electronic Record | Date and Time of Preparation or Storage or Issuance or Receipt of Electronic Record | Source of Electronic Record | Date and Time of Print of Electronic Record |
| 1. |
| 2. |
That the printouts of the abovementioned documents have been taken under my instructions and are filed along with the list of documents.
3.That the information has been stored in the office computer which is regularly used by me in the ordinary course of business, and the printouts thereof have been taken under my instructions from a printer which is regularly used by me in the course of business.
4.That I have been advised to state that the conditions of Section 65B of the Indian Evidence Act, 1872 stand complied with in respect of these documents.
5.That I, in particular, confirm:
a)That the computer system and printer are regularly used by me to produce the computer output and to store such records. The relevant printouts were taken under my supervision, and I have lawful control over the use of the said computer system and printer in my office.
b)That the relevant information from the correspondence formed part of the input which was regularly fed by me into the computer system in the ordinary course of my business activities.
c)That the computer system used by me has been operating properly, and the documents, their accuracy and their contents have not been altered or tampered with in any manner whatsoever during the transfer process.
d)That the information contained in the computer output is an exact replica, produced from the original electronic record, and is therefore a faithful reproduction of the information contained in the Electronic Records therein.
DEPONENT
VERIFICATION
Verified at Place of verification on this Day of verification day of Month and year of verification that the contents of the above affidavit are true and correct to the best of my knowledge and belief, and that nothing material or relevant has been concealed therefrom.
DEPONENT