WRITTEN STATEMENT ON BEHALF OF THE DEFENDANTS WITH SUPPORTING AFFIDAVIT01-27
2. Reply to the Application under Order 38 Rules 1 & 5 read with Section 151 CPC with supporting affidavit28-37
3. Application under Order VII Rule 11 read with Section 151 CPC with affidavit38-50
4. List of documents with documents
5. Vakalatnama
DEFENDANTS
THROUGH:
Office address/date line(Law firm name & ASSOCIATES)
DATED:Advocate
Office No. Advocate's office number, Delhi.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CS (OS)-Suit number/Year
IN RE-:
Plaintiff company name PVT LTD…PETITIONER
VERSUS
Defendant no.1 company name PVT LTD & ANR…RESPONDENTS
WRITTEN STATEMENT ON BEHALF OF DEFENDANTS
MOST RESPECTFULLY SHOWETH:
PRELIMINARY OBJECTIONS:
1.THAT the present suit is a gross abuse and misuse of the process of law and has been instituted with oblique motives and designs to harass the defendants by placing reliance on forged and frivolous documents, i.e. forged invoices, forged e-mails etc., and to drag the defendants into frivolous litigation, and further to usurp the sum of ₹ Amount paid by defendants (₹)/- paid by the defendants to the plaintiff, while the plaintiff has failed to fulfil its commitments and obligations towards the defendant no.1. The defendant no.1 is, therefore, entitled to a refund of the said amount of ₹ Refund amount claimed (₹)/- from the plaintiff, together with interest. The present suit, as filed by the plaintiff, being legally not maintainable, may kindly be dismissed with special and heavy costs.
2.THAT the suit as filed by the plaintiff is hopelessly barred by limitation, inasmuch as, according to the plaintiff's own case, it raised invoices dated First invoice date and Second invoice date for a total amount of ₹ Total invoiced amount (₹)/-, whereas the true fact of the matter is that the plaintiff never raised any invoice or invoices upon the defendants, and no invoice/invoices were ever sent to the defendants. When the invoices were never raised, the question of their acceptance does not arise, and the defendants never gave their consent at any point of time to receive the invoices by e-mail or by any other manual mode. It is also pertinent to mention here that the plaintiff has filed forged copies of the invoices along with the suit, and the acknowledgements are forged and fabricated, which is evident from the plaintiff's own documents and e-mails. Further, the defendant no.1 made a payment of ₹ Advance payment amount (₹)/- on Date of part payment as an advance payment of ₹ Advance payment amount (₹)/- on Date of advance payment. However, the present suit has been filed by the plaintiff on or after Date of filing of the suit, i.e. beyond the period of three years from the dates on which the said invoices were allegedly raised and on which the advance payment of ₹ Part payment amount (₹)/- was made on Date of part payment (day).Date of part payment (month).Year of part payment. As such, the suit is legally not maintainable and is liable to be dismissed outright.
3.THAT no cause of action has arisen in favour of the plaintiff and against the defendants for the present suit, and the suit being without any cause of action is liable to be dismissed under Order VII Rule 11 of the CPC.
4.THAT the suit is also bad for misjoinder of parties, inasmuch as the plaintiff has deliberately and mala fide dragged and impleaded the defendant no.2 in the present suit. As per settled law, since the defendant no.1 is a separate legal entity, no suit can lie against the defendant no.2 merely because he is the Managing Director of the defendant no.1, and no personal or individual liability has accrued upon the defendant no.2. Hence, the suit filed against the defendant no.2 is liable to be dismissed, and the defendant no.2 is liable to be deleted from the array of the parties.
5.THAT the plaintiff has not approached this Hon'ble Court with clean hands and has not stated the true facts, and has suppressed true and material facts from this Hon'ble Court. It is submitted that the plaintiff, through its representatives/officials, induced and allured the defendant no.1 with tall claims of its expertise in developing web portals for wedding planning and management and an online travel portal. Upon such tall claims, representations, inducement and allurement of the plaintiff, the defendant no.1 bona fide agreed to place a purchase order with the plaintiff, and the plaintiff repeatedly reiterated and reassured the defendant no.1 to complete the said purchase order for the web portal for wedding planning. The other purchase order for the travel portal was cancelled with mutual consent, and for the wedding planning portal, the defendants raised a new purchase order dated New purchase order date (day).New purchase order date (month).Year of new purchase order, containing all the terms and conditions for the portal, as the previous purchase order and allied matters had already been scrapped/cancelled. A cheque of ₹ Advance cheque amount in lacs (₹) lacs was issued as an advance payment towards the relaunch of the project, and the payment terms and conditions were also finalised as per the new purchase order of the defendants. It was assured by the plaintiff to the defendants that the work would be done to their complete satisfaction, as per their requirements, and within the time frame prescribed under the new purchase order dated Purchase order date (day).Purchase order date (month).Year of purchase order, which was duly accepted and acknowledged by the plaintiff, and it had been decided earlier that the previous purchase order stood scrapped.
It is submitted that the defendant no.1, bona fide and in good faith, trust and belief in the plaintiff, even made the advance payment of ₹ Advance payment amount (₹)/- to the plaintiff on Date of advance payment (day).Month of advance payment.Year of advance payment, i.e. even prior to placing the said purchase orders dated Purchase order date (day).Purchase order date (month).Year of purchase order, and the plaintiff did not breathe a single word about the relaunch of the project and concealed the fact of such relaunch, the cheque having been issued subject to certain terms and conditions of the new purchase order dated XX.New purchase order date (month).Year of new purchase order. Further, the defendant no.1 bona fide made a payment of ₹ Payment amount (₹)/- to the plaintiff on Date of payment (day).Date of payment (month).Year of payment. However, to the shock and surprise of the defendant no.1, the plaintiff failed to fulfil its commitments, assurances and promises made to the defendant no.1, and neither completed nor made delivery as per the new purchase order dated New purchase order date (day).New purchase order date (month).Year of new purchase order of the defendant no.1. The defendant no.1 therefore corresponded with the plaintiff through e-mails and telephonic conversations, requesting the plaintiff on numerous occasions to complete and deliver the work as per the purchase order dated Purchase order date (day).Purchase order date (month).Year of purchase order, but the plaintiff, as is apparent, evinced interest only in extracting as much money as possible from the defendant no.1. Evidently, as no work was completed by the plaintiff, the defendants enquired several times about the completion of the work, but the plaintiff gave the excuse that new persons were going to be assigned to the work. All the requests and persuasion of the defendant no.1 fell on the deaf ears of the plaintiff, which is clearly borne out from the numerous e-mail correspondence as well as telephonic conversations. The defendant no.1 was in a state of shock and dismay that, despite receiving a huge amount of ₹ Total amount received by plaintiff (₹)/-, the plaintiff had done nothing worth the said amount; rather, on account of the intentional and deliberate delay on the part of the plaintiff, the defendant no.1 suffered substantial economic loss as well as loss of expected business and goodwill.
It is also pertinent to mention here that throughout the entire plaint/suit, the plaintiff is silent regarding the delivery of any project to the defendants, as no project was ever delivered to the defendants; the plaintiff failed to give a date of delivery to the defendants, as no delivery was ever made; and the plaintiff failed to provide the details of the delivery to the authorised person of the defendants, as no delivery was ever given to the defendants.
It is also pertinent to mention that the plaintiff, in the cause of action set out in the plaint, never made any reference to the delivery of the web portal to the defendants.
It is further pertinent to mention that when the plaintiff failed to deliver the web portal, the project manager of the plaintiff, namely Plaintiff's project manager name, approached the defendants in order to finalise the Business Requirement Document for the Web portal name web portal of the defendants. The said Business Requirement Document was prepared on July Business requirement document date (day), Year of business requirement document, in accordance with the purchase order dated Purchase order date (day).Purchase order date (month).Year of purchase order.
That it is also relevant to mention that, as per the IT guidelines applicable to every web designing company, it is mandatory that each and every module developed for a client must receive the approval of the client and the final UAT (User Acceptance Testing) from the client, which was never obtained by the defendants in this case. It is further pertinent to mention that the Web portal name web portal comprised numerous modules, namely:
(i)Login/Registration Module; (ii) Venue Module; (iii) Vendor Management; (iv) Venue Management; (v) Menu Management; (vi) Venue-Facility Management; (vii) Venue-Inventory Management (the same as a Hotel Booking Engine); (viii) Venue-Tariff Management; (ix) Product Master; (x) Product Management; (xi) Wedding Package Search; (xii) Wedding Package Management; (xiii) Honeymoon Package; (xiv) Shopping Cart; (xv) Mini Cart; (xvi) Order Processing; (xvii) Extranet; (xviii) Rating & Reviews; (xix) Earn & Redeem Rewards Points; (xx) Redemption Gift Points; (xxi) My Account; (xxii) My Account – Edit/View Your Profile; (xxiii) My Account – View Favorites; (xxiv) My Account – View Favorites; (xxv) My Account – Orders; (xxvi) My Account – Refer and Earn; (xxvii) My Account – Earned Points; (xxviii) My Account – Post a Complaint/Feedback; (xxix) My Account – Reviews; (xxx) My Account – Redeem Your Points; (xxxi) Create the Wedding Account; (xxxii) Wedding Account – Login; (xxxiii) Friends/Relatives List of Management; (xxxiv) Contact-Group Management; (xxxv) My Wedding – Invite Your Friends; (xxxvi) My Wedding – Create Your Wedding Card; (xxxvii) My Wedding – Create Your Album; (xxxviii) My Wedding – Upload Photos/Videos; (xxxix) My Wedding – Ask Suggestion (Take a Friend's Advice); (xxxx) My Wedding – Give Your Wishes for Wedding; (xxxxi) My Wedding – Gift a Dialshaadi Voucher; (xxxxii) Wedding Tips; (xxxxiii) Banner Management; (xxxxiv) NGO and Donation Management; (xxxxv) Vendor Directory; (xxxxvi) Deals (Offers) Management; (xxxxvii) News Management; (xxxxviii) MIS Reports; (xxxxix) Masters Management; (xxxxx) Usability Tests; (xxxxxi) W3C Compliance; (xxxxxii) Programming Language, Application Server, Architecture & Coding Standards; (xxxxxiii) Configuration Details; (xxxxxiv) Application Scope, Limitations & Assumptions; (xxxxxv) Timelines; (xxxxxvi) Sign-Off, etc. There are 56 modules available in the scoping of the web portal, and the scoping constitutes merely Scoping percentage of portal% of the entire portal of the defendants. The entire work of the portal was divided into certain percentage-based categories, namely:
(i)Scoping – Scoping work percentage%
(ii)Wireframe – X%
(iii)VV Delivery – VV delivery work percentage%
(iv)Design of Web portal name – Design work percentage%
STAGING OF DIAL SHAADI
(v)Master/Vendor – X%
(vi)Venue/Menu/Product – X%
(vii)Package/My Wedding – X%
(viii)Order Tracking/Review Management – X%
(ix)Audit/User Management
(x)Extranet/Banner – X%
(xi)Products – X%
(xii)Tips/Vendor Directory – X%
(xiii)Beta Release – Beta release percentage%
(xiv)Bugfixing – Bugfixing percentage%
(xv)Delivery – X%
(xvi)After Delivery 30 Days – X%
This constituted the entire payment schedule for the web portal. The defendants, through several e-mails and communications, conveyed to the plaintiff that the Design (Creative) of Web portal name, falling under category (iv) as per the schedule of work, had been completed only to the extent of Design completion percentage%, and therefore the plaintiff could not expect Payment percentage demanded% payment for the Design (Creative) of Web portal name. It was further stated in the said communications that the plaintiff was merely forcing the defendants to pay for work which had not been delivered so far, and that the advance cheque had been given to the plaintiff only until the delivery of Master/Vendor. The defendants also communicated to the plaintiff that, till date, the plaintiff had taken Rs.Excess amount taken (₹)/- more than the agreed amount for the work.
That the plaintiff did not furnish any proof of delivery of any of the modules, and it is the defendants who suffered a loss of three years, along with financial loss of several lakhs of rupees, on account of the plaintiff and its manner of working.
The malafide conduct of the plaintiff is further apparent from the fact that the plaintiff wrongly raised the said invoices, which are contrary to the terms and conditions and the schedule of payment.
It is further submitted that, in spite of the said misconduct and the failure on the part of the plaintiff to complete the said work of defendant no.1, the plaintiff regularly forced and compelled defendant no.1 to make further payment by giving false assurances and promises that the work would be completed as per the said purchase order dated Purchase order date (day).Purchase order date (month).Year of purchase order without further delay. The defendants gave advance cheque no.Advance cheque number to the plaintiff for the relaunch of the project, and conveyed to the plaintiff that cheque no.Cheque number dated Cheque date (day).Cheque date (month).Year of cheque for Rs.Cheque amount (₹)/- should not be presented. However, the plaintiff presented the said cheque to the bank in spite of the defendants' express direction not to present it. The entire communication between the plaintiff and the defendants is available through e-mail. Further, as per the e-mail letter dated Email letter date (day).Email letter date (month).Year of email letter of the plaintiff, sent through Plaintiff's head of sales name, Head of Sales, it was assured to the defendant that the said payment was subject to delivery of the Milestone (Master/Vendor) as per Schedule list (v) attached thereto, and that the delivery of the milestone was Milestone delivery date (day) October, Year of milestone delivery. It was further assured that the plaintiff shall strive to achieve the said milestone earlier. In the said e-mail letter, the plaintiff again assured and promised: "IN CASE THE ABOVE MENTIONED MILESTONE IS NOT ACHIEVED AS PER SCHEDULE ATTACHED, THEN ABOVE PAYMENT SHALL BE REFUNDED AND WILL BE DUE AT THE TIME OF ACHIEVEMENT OF MILESTONE."
However, it is submitted that, since the intentions of the plaintiff were mala fide from the very beginning and, after taking the said cheque, the plaintiff did not show any interest in the work, defendant no.1 sent an e-mail dated Email date (day).Email date (month).Year of email to the plaintiff, reiterating that payments would be made only against the delivery/achievement of certain milestones/deliverables, as had been finalised as per the schedule, once defendant no.1 became aware of the mischievous designs and motives of the plaintiff in getting the said cheque issued by defendant no.1. It was also stated in the said e-mail that the plaintiff should deliver the Creative, Master and Vendor against the said cheque payment, and accordingly deliver the Master/Vendor by Monday, whereupon the UAT (User Acceptance Testing) would be conducted and the payment taken accordingly. It was also requested that the plaintiff allow the project to proceed smoothly and not interfere unnecessarily so as to deviate from the same.
It is pertinent to mention that the plaintiff, on Shifting of responsibility date, shifted its entire responsibility to Third-party vendor name, and this fact was not disclosed in the plaint/suit. On account of this shifting of responsibility, the defendants have suffered considerably in the past. Thus, the suit as filed by the plaintiff is liable to be dismissed with special costs.
It is further submitted, to the shock of defendant no.1, that upon receiving the e-mail dated Email date (day).Email date (month).Year of email from the plaintiff, the plaintiff made the false statement that the Creative had been closed, and further demanded a current-dated payment in order to continue the project at its pace for delivery on Delivery date (day)st December, Year of delivery. The plaintiff threatened that, in case the payment of Rs.Demanded payment in lacs (₹) lakhs was not made by Payment deadline (day).Payment deadline (month).Year of payment deadline, the resources would be deployed on another project, the development would be slowed down, and the delivery of the project would be delayed. In this manner, the plaintiff began harassing and threatening defendant no.1 and demanding payment without fulfilling its obligations and commitments under the said contract. Evidently, the plaintiff failed to complete any part of the said project and portal in accordance with the purchase orders, and showed interest only in recovering as much money as possible from defendant no.1. Despite having received the substantial amount of Rs.Amount received by plaintiff (₹)/-, the plaintiff failed to render services of that value to defendant no.1, and as such, defendant no.1 is legally entitled to recovery of the said amount of Rs.Recovery amount claimed (₹)/- from the plaintiff. On the other hand, the plaintiff is not entitled to any amount whatsoever from defendant no.1, and when no principal amount is due and outstanding, no question of payment of interest arises. Thus, the suit as filed by the plaintiff is liable to be dismissed with special costs.
6.THAT the suit has not been signed, verified and instituted by a duly authorised and competent person. Name of person who signed and verified plaint is not a duly authorised person, nor is he personally well conversant with the facts of the case. The suit is, therefore, not legally maintainable and is liable to be dismissed outright.
REPLY ON MERITS:
1.THAT the contents of paragraph no. 1 of the plaint are a matter of record only to the extent that the plaintiff is a Private Limited Company; the rest, as stated, is wrong and denied. It is wrong and denied that Name of plaintiff's authorised person is conversant with the facts of the case, or that he is duly authorised, or that he is competent and authorised to sign, verify and institute the present suit and to lead evidence on behalf of the plaintiff as alleged. All the averments are false, frivolous, misconceived and contrary to the facts. It is submitted that Name of person instituting suit is not duly authorised, personally conversant or competent to sign, verify and institute the present suit; hence the suit signed, verified and filed by Name of person who filed suit is legally not maintainable and deserves outright dismissal.
2.THAT the contents of paragraph no. 2 of the plaint are a matter of record only to the extent that defendant no. 1 is a Private Limited Company; it is denied that defendant no. 2 is the Managing Director, and the rest, as stated, is absolutely wrong and denied. It is absolutely wrong and denied that defendant no. 2 issued the cheque while admitting liability, or that defendant no. 2 is jointly and severally liable to discharge the alleged admitted debt and liability. All the allegations made by the plaintiff are false, frivolous, misconceived, a pure concoction and contrary to the facts. It is submitted that since defendant no. 1 is not liable to pay any amount to the plaintiff, no question of any liability on the part of defendant no. 2 arises. As per settled law, a Managing Director, any other Director or an authorised signatory is not personally or individually liable for any act or liability of the Company, and the plaintiff has wrongly and mala fide impleaded defendant no. 2 as a party to the present suit in order to harass, humiliate and defame him. The suit against defendant no. 2 is therefore liable to be dismissed outright. Reference is invited to the submissions made in the preliminary objections.
3.THAT the contents of paragraph no. 3 of the plaint, as stated, are wrong and hence denied, as it was the plaintiff who approached defendant no. 1 through its representatives/officials, and defendant no. 1 did not approach the plaintiff. It is submitted that, owing to the tall claims, rosy picture, mischievous representations and assurances made by the plaintiff that it would complete the work of defendant no. 1 in a time-bound manner and to the utmost satisfaction of defendant no. 1, defendant no. 1 bona fide placed the said purchase order upon the plaintiff, unaware of the bad intentions of the plaintiff. The bona fide of defendant no. 1 is further apparent from the fact that it paid an advance payment of Rs. Advance payment amount (₹)/- to the plaintiff, and further paid Rs. Further payment amount (₹)/- to the plaintiff even though the plaintiff had not done any work. Defendant no. 1 thereby learnt of the bad intentions and motives of the plaintiff, as despite receiving payments of Rs. Payment amount (₹)/-, the plaintiff failed to render any services as per the purchase order dated Purchase order date (day).Purchase order date (month).Year of purchase order, the previous purchase order having been terminated by mutual understanding between the plaintiff and the defendants, which was duly acknowledged by both parties. Reference is invited to the submissions made in the preceding paragraphs.
4.THAT the contents of paragraph no. 4 of the plaint are not denied to the extent that defendant no. 1 paid the advance amount of Rs. Advance payment amount (₹)/- to the plaintiff on Date of advance payment; the rest, as stated, is absolutely wrong and denied. It is absolutely wrong and denied that the plaintiff developed the web portal of the defendant as per the specifications and delivered the same to the defendants, or that pursuant to the said purchase order and as per the requirements, the plaintiff provided the requisite services to the defendant as alleged. It is further absolutely wrong and denied that, as per the terms of the purchase orders and the understanding between the parties, the plaintiff raised the invoices/bills upon the defendant as alleged. All the allegations made by the plaintiff are false, frivolous, misconceived and contrary to the facts. It is submitted that defendant no. 1 made the said advance payment of Rs. Advance payment amount (₹)/- to the plaintiff on Date of advance payment (day).X.Year of advance payment, and that the plaintiff created false and frivolous invoices/bills which were never received by the defendants. Even by the plaintiff's own admission in its various email correspondence, including an email dated Email date (day).Email date (month).Year of email, the work was to be completed by Work completion deadline (day).Work completion deadline (month).Year of work completion deadline; however, the said work was not completed, nor did the plaintiff develop the web portal as per the specifications and requirements, nor deliver the same to defendant no. 1. Reference is invited to the submissions made in the preceding paragraphs.
5.THAT the contents of paragraph no. 5 of the plaint, as stated, are absolutely wrong and denied, and the plaintiff be put to strict proof of the averments. It is absolutely wrong and denied that defendant no. 1 duly acknowledged receipt of the invoices/bills, or that, as per any mutual understanding, the defendants were required to make payment within 30 days, or that the defendants failed to make payment of the said amount within the agreed period, or that there was any admission of liability by the defendants as alleged. It is further absolutely wrong and denied that the defendants had from time to time requested the plaintiff for upgradation and modification of the web portals, or that such upgradation and modification was not part of the contract, or that, pursuant to such requests, the plaintiff provided the requisite services to the defendants as alleged. It is further absolutely wrong and denied that the plaintiff had been making telephonic calls requesting the defendants to make payment, or that the defendants failed to make payment as alleged. All the allegations made by the plaintiff are false, frivolous, misconceived and contrary to the facts. It is submitted that the averments of the plaintiff are misleading: according to the plaintiff itself, one of the alleged invoices/bills was dated Invoice date (day).X.Year of invoice, in which case it could not have been accepted vide email dated X.X.Year of email as alleged by the plaintiff. It is further submitted that the plaintiff raised the said invoices/bills when no work had been done by it as per the purchase order, and there was therefore no occasion for the plaintiff to raise the said invoices/bills. Invoices/bills are ordinarily raised only upon completion of work as per the purchase orders, whereas in the present matter the said alleged invoices/bills were raised in advance, when the work was yet to be completed by the plaintiff. It is further submitted that the plaintiff has not placed on record any document to show that the work was completed as per the purchase orders; on the contrary, the email correspondence of the plaintiff with defendant no. 1 is self-explanatory that the work was not completed and that the plaintiff wrongly assured, time and again, to complete the same. It is further submitted that there never was any understanding that defendant no. 1 would make payment within 30 days, and the plaintiff has not placed any document to substantiate the same. There was no question of the defendants admitting any liability. So far as the payment of Rs. Payment amount (₹)/- is concerned, the same was bona fide made by defendant no. 1 on the assurance of the plaintiff that it would complete the work against the purchase orders. It is submitted that the plaintiff was legally bound to complete the work as per the purchase orders, including the upgradation and modification of the web portals, and no such request as alleged was ever made by the plaintiff to the defendants. It is also important to mention that the project was re-launched, a fact not stated in the plaint, and the suit is barred by limitation as the purchase orders pertain to the year Year of purchase orders. Reference is invited to the submissions made in the preceding paragraphs.
6.THAT the contents of paragraph no. 6 of the plaint are absolutely wrong and are denied. It is absolutely wrong and denied that, pursuant to persistent requests and demands made by the plaintiff for payment of the amount against the services rendered by it and the invoices raised upon the defendants, any liability was admitted, or that the defendant issued the cheque in question with an intention to discharge its debt in part, as alleged. All the allegations made by the plaintiff are false, frivolous, misconceived and contrary to the facts, and the plaintiff shall be put to strict proof of the averments. It is submitted that the plaintiff coerced and compelled defendant no. 1 to make further payment even though the plaintiff had failed to complete the work, despite the fact that an amount of Rs. Amount paid (₹)/- had already been paid by defendant no. 1 to the plaintiff. However, by undue influence, force and compulsion, the plaintiff made defendant no. 1 issue the said cheque; nevertheless, defendant no. 1, through email, made it clear to the plaintiff that the said cheque payment was subject to the fulfillment of the requirements by the plaintiff and that the plaintiff had no entitlement thereto. It is further submitted that the plaintiff even threatened defendant no. 1 to issue another cheque of the current date, failing which the pace of work would be slowed or the work under the purchase order would be stopped or closed. The plaintiff wrongly and falsely presented the said cheque without discharging its duties and obligations, its intentions having been dishonest and mala fide from the very beginning, and further presented the said cheque without any information to or consent of defendant no. 1. Reference is invited to the submissions made in the preceding paragraphs.
7.THAT in reply to paragraph no. 7 of the plaint, it is submitted that the plaintiff wrongly and mala fide presented the said cheque although no liability was due from defendant no. 1 and although the terms and conditions had not been fulfilled. It is further submitted that defendant no. 1, in its email dated Email date (day).Email date (month).Year of email, clearly stated: “AS ALREADY DECLARED WE ARE NOT DOING THE PROJECT WITH Name of the project referred to in the email and purchase order. HENCE THERE IS NO USE OF PAYING YOU Cheque amount (₹). ALTHOUGH WE HAVE NEVER ASKED YOU TO DEPOSIT THE CHEQUE, AS THE LAST MAIL ALSO SAYS THAT WE WILL NOT GIVE YOU ANY PAYMENT UNLESS YOU DO THE DELIVERY.” The said email of defendant no. 1 made it clear that the plaintiff presented the said cheque without making delivery of the Name of the project referred to in the email and purchase order etc. in accordance with purchase order no. Purchase order number dated Purchase order date (month).Year of purchase order. It is further submitted that the plaintiff did not dispute or controvert the said statement contained in the email dated Email date (day).Email date (month).Year of email of defendant no. 1. It is, however, submitted that the plaintiff wrongly and falsely filed the said complaint under Section 138 of the Negotiable Instruments Act only to harass, extort money from and blackmail the defendants. Reference is invited to the submissions made in the preceding paragraphs.
8.THAT the contents of paragraph no. 8 of the plaint are absolutely wrong and are denied. It is absolutely wrong and denied that any amount is outstanding and payable by the defendants, or that there is any admitted liability, or that the defendants are liable to pay interest @ Interest rate claimed per annum (%)% per annum, or that the defendants are liable to pay Rs. Amount claimed (₹)/-, or that the plaintiff is entitled to further pendente lite interest @ Pendente lite interest rate (%)% per annum with effect from Interest start date (day).Interest start date (month).Year of interest start date, as alleged. All the allegations made by the plaintiff are false, frivolous, misconceived and contrary to the facts. The defendants are under no liability whatsoever to pay any amount to the plaintiff, and the alleged principal outstanding amount claimed by the plaintiff is imaginary, an afterthought and a pure concoction. The mala fides and contradictions of the plaintiff are apparent inasmuch as the two purchase orders were for Rs. Amount of each purchase order (₹)/- each, i.e. Rs. Total purchase order amount (₹)/- in aggregate, as stated by the plaintiff, whereas the plaintiff raised the alleged invoices/bills for Rs. Invoiced amount (₹)/-, which demonstrates that the plaintiff did not complete the work in accordance with the purchase orders; otherwise, the plaintiff would have raised bills for the entire amount of the purchase orders. It is further submitted that the said alleged invoices/bills were raised without completion of the work, and in numerous email exchanges the plaintiff continued to assure completion of the work but the same was never fulfilled. In this manner, the plaintiff not only committed cheating and fraud upon defendant no. 1 but also deceitfully received Rs. Amount deceitfully received (₹)/- from defendant no. 1, and on the basis of the said manipulated invoices/bills is now making a false and frivolous claim of an outstanding amount of Rs. Outstanding amount claimed (₹)/-. When there is no principal outstanding amount, the question of any alleged claim for interest does not arise. The mala fides and contradictions are further apparent inasmuch as, on the one hand, the plaintiff claimed interest @ Interest rate (%)% per annum, while in sub-clause (ii) the interest has been mentioned as @ 18% per annum. However, the defendants are not liable to pay any amount whatsoever to the plaintiff, and further, the alleged claim is barred by limitation. Reference is invited to the submissions made in the preceding paragraphs.
9.THAT the contents of paragraph no. 9 of the plaint are absolutely wrong and are denied. It is absolutely wrong and denied that any cause of action has arisen in favour of the plaintiff and against the defendants, or that the defendants approached the plaintiff as alleged. It is further absolutely wrong and denied that the plaintiff developed the Name of the project referred to in the email and purchase order for the defendants and delivered the same to the defendants and raised the invoice, or that defendant no. 1 acknowledged receipt of the invoices and accepted the same, as alleged. It is further absolutely wrong and denied that any cause of action arose on Cause of action date (day).Cause of action date (month).Year of cause of action, or that any liability was admitted, or that the defendants made part payment to the plaintiff, or that there was any alleged request by the plaintiff or any assurance by the defendants of making payment, or that the defendants failed to make payment, as alleged. It is further absolutely wrong and denied that any cause of action arose on Cause of action date (day).Cause of action date (month).Year of cause of action when the defendants, while admitting their liability and with a view to discharge the liability in part, issued the cheque of Rs. Cheque amount (₹)/- in favour of the plaintiff, or that any cause of action arose on X.Cause of action date (month).Year of cause of action when the plaintiff issued a demand letter to the defendants, or that defendant no. 2 sent a frivolous reply, as alleged. It is further absolutely wrong and denied that any cause of action arose when the plaintiff filed the complaint under Section 138 of the Negotiable Instruments Act, or that the defendants failed to make payment of the outstanding amount and liquidate their alleged admitted liabilities, as alleged. All the averments of the plaintiff are false, frivolous, misconceived and contrary to the facts. It is submitted that no cause of action whatsoever has arisen in favour of the plaintiff and against the defendants; the suit is founded upon a false story and concealment of true and material facts, and is a gross abuse and misuse of the process of law. There never was any alleged liability, nor any admitted liability, of the defendants, and it is apparent from the alleged demand letter sent vide email dated X.Demand letter email date (day).Year of demand letter email that the same pertains only to the cheque of Rs. Cheque amount (₹)/-. Reference is invited to the submissions made in the preceding paragraphs.
10.THAT in reply to paragraph no. 10 of the plaint, it is submitted that the territorial jurisdiction of this Hon’ble Court is not denied. However, no cause of action arose in favour of the plaintiff for filing the present suit; the suit has been filed without any cause of action, and the plaintiff is not entitled to any relief.
11.THAT the contents of paragraph 11 of the plaint are absolutely wrong and are denied. It is absolutely wrong and denied that the suit is within the statutory period of limitation as alleged. All the averments of the plaintiff are false, frivolous, misconceived and contrary to the facts. The suit is hopelessly barred by limitation, as it is the plaintiff's own case that the alleged invoices/bills are dated First invoice date (day).X.Year of first invoice and Second invoice date (day).X.Year of second invoice, whereas the present suit has been filed on or after X.X.Year of filing of the suit, that is, beyond the period of three years. It is also pertinent to mention here that the plaintiff has not stated a single word regarding the relaunching of the project, and that the advance payment of Rs. Advance payment in lacs (₹) lacs was issued against the new purchase order dated New purchase order date (day).New purchase order date (month).Year of new purchase order only. The plaintiff is not entitled to any relief whatsoever in the present suit. Reference is invited to the submissions in the preceding paragraphs.
12.THAT the contents of paragraph 12 of the plaint are absolutely wrong and are denied. All the averments of the plaintiff are false, frivolous, misconceived and contrary to the facts. Reference is invited to the submissions in the preceding paragraphs.
The prayer clause and sub-clauses (a) to (c) thereof are wrong and are denied, and the plaintiff is not entitled to any relief.
P R A Y E R
It is, therefore, most respectfully prayed that the suit of the plaintiff, being a gross abuse and misuse of the process of law and being filed without any locus standi or cause of action, may kindly be dismissed with special and exemplary costs in favour of the defendants and against the plaintiff.
Any other relief(s) which this Hon'ble Court may deem fit and proper may also be granted in favour of the defendants and against the plaintiff.
DEFENDANTS
THROUGH:
NEW DELHI.
DATEDCOUNSEL.
VERIFICATION:
Verified at New Delhi on thisday of November, Year of verification that the contents of paragraphs 1 to 8 of the reply on merits and the factual submissions in the preliminary objections are true and correct to our personal knowledge, and that the contents of paragraphs 9 to 12 of the reply on merits and the legal submissions in the preliminary objections are true upon information received and believed to be correct. The rest is prayer to this Hon'ble Court.
DEFENDANT
IN THE HON'BLE HIGH COURT OF DELHI : AT NEW DELHI.
CS(OS) NO.Suit number/Year
IN RE:
M/S Plaintiff company name (affidavit) PVT. LTD.… PLAINTIFF
VERSUS
Defendant company name (affidavit) PVT. LTD. & ANR.… DEFENDANTS
AFFIDAVIT
Affidavit of Shri Deponent's name, aged Deponent's age years, Managing Director of M/s Deponent's company name Pvt. Ltd., Deponent's address line, Building name Building, Address line Address PIN code
I, the above-named deponent, do hereby solemnly affirm and state on oath as under:
1.THAT I am defendant No. 2 and the Managing Director of defendant No. 1, and the authorised representative of defendant No. 1. I am well conversant with the facts of the case and competent to swear this affidavit.
2.THAT the contents of the accompanying written statement have been drafted under my instructions by our counsel; the same have been read over and explained to me, and I have understood them to be correct.
3.THAT, for the sake of brevity, the contents of the accompanying written statement are not reproduced herein, and the same may kindly be read as part of this affidavit.
DEPONENT.
VERIFICATION;
Verified at New Delhi on thisday of November, Year of verification that the contents of the above affidavit are true and correct to my knowledge, and no part of it is false or wrong.
DEPONENT.
IN THE HON'BLE HIGH COURT OF DELHI : AT NEW DELHI.
CS(OS) NO.Suit number/Year
IN RE:
M/S Plaintiff company name (reply) PVT. LTD.… PLAINTIFF
VERSUS
Defendant company name (reply) PVT. LTD. & ANR.… DEFENDANTS
REPLY ON BEHALF OF THE DEFENDANTS TO THE
APPLICATION U/O 38 RULES 1 & 5 READ WITH
SECTION 151 CPC
RESPECTFULLY SHOWETH:
PRELIMINARY OBJECTIONS:
1.THAT the application is a gross abuse and misuse of the process of law. The plaintiff has no locus standi, nor any legal right, title, interest, claim or concern whatsoever of any nature. The suit filed by the plaintiff is hopelessly barred by limitation, and the plaintiff is not entitled to any amount whatsoever from the defendants. The application therefore deserves to be dismissed outright.
REPLY ON MERITS:
1.THAT the contents of paragraph 1 of the application are a matter of record, insofar as the plaintiff has filed a false and frivolous suit against the defendants. The accompanying written statement may kindly be read as part and parcel of this reply; the same is not reproduced herein for the sake of brevity.
2.THAT the contents of paragraph 2 of the application are not denied to the extent that the defendants placed purchase orders upon the plaintiff for development of a web portal and other related services, and further made an advance payment of Rs. Advance payment amount (₹)/- prior to placing the purchase orders and made a payment of Rs. Payment amount (₹)/- to the plaintiff; the rest, as stated, is absolutely wrong and denied. It is absolutely wrong and denied that the plaintiff duly developed the web portal and delivered the same to the defendants and thereafter submitted bills to the defendants as alleged, or that there was ever any liability admitted by the defendants, or that the defendants have failed to make payment of the balance amount as alleged. It is further absolutely wrong and denied that, after persistent persuasion, and while admitting its liability and in part discharge thereof, the defendants issued a cheque dated Cheque date (day).Cheque date (month).Year of cheque, or that the defendants have failed to discharge their liability, or that any amount is outstanding and payable by the defendants, or that the liabilities of the defendants are piling up by the addition of interest. The entire story set up by the plaintiff is a bundle of lies, a pure concoction and a product of the plaintiff's own evil mind, and is denied in toto. Firstly, the plaintiff never developed the web portal nor delivered the same to the defendants; the plaintiff failed to complete its part of the work in accordance with the purchase orders and the agreed terms and conditions, and the bills/invoices as alleged were never raised, the plaintiff having demanded payment without completing the said work in terms of the purchase orders. There was never any occasion for any admission by the defendants. The defendants issued the said cheque dated Cheque date (day).Cheque date (month).Year of cheque for Rs. Cheque amount (₹)/- as an advance payment against the new purchase order dated New purchase order date (day).New purchase order date (month).Year of new purchase order, subject to the agreed terms and conditions, and the plaintiff further assured completion of the work in accordance with the purchase order XX.Purchase order date (month).Year of purchase order, which was never done by the plaintiff. The plaintiff instead mala fide presented the said cheque in order to usurp the money of defendant No. 1, the plaintiff already being in wrongful possession of a sum of Rs. Amount wrongly possessed by plaintiff (₹)/- of defendant No. 1. There is therefore no amount due or outstanding payable by defendant No. 1 to the plaintiff. Reference is invited to the submissions in the accompanying written statement.
3.THAT the contents of paragraph 3 of the application, as stated, are absolutely wrong and denied. All the allegations made by the plaintiff are false, frivolous, concocted, misconceived and contrary to the facts. The conduct of the plaintiff makes it apparent that, had there been any such alleged due and outstanding amount, and had the plaintiff raised the alleged invoices/bills dated First invoice date (day).X.Year of first invoice and Second invoice date (day).X.Year of second invoice after completion of the work and delivery thereof to defendant No. 1, the plaintiff would not have refrained from taking any legal recourse for almost four years and would not have filed the false and frivolous suit after X.X.Year of filing of the suit. The plaintiff has now come forward with a false and fabricated story and allegations. The alleged apprehension set up by the plaintiff is purely the plaintiff's own imagination and concoction. In fact, the plaintiff has filed a time-barred suit, has abused and misused the process of law, and has filed the present suit solely with an intention to extract money and blackmail the defendants, although the plaintiff is not entitled to any amount from the defendants. The plaintiff has not narrated a single word in the entire plaint regarding the relaunching of the project, and has concealed the entire facts of its dealings with the defendants. Reference is invited to the submissions in the accompanying written statement.
4.THAT the contents of paragraph no. 4 of the application, as stated, are absolutely wrong and are denied. It is absolutely wrong and denied that there is any substantial or admitted amount recoverable by the plaintiff from the defendants, or that the said amount pertains to services provided by the plaintiff to the defendants under admitted bills, or that it is just and equitable that the defendants be directed to furnish security as alleged. All the allegations made by the plaintiff are false, frivolous, concocted, misconceived and contrary to the facts. There is no merit or substance in the story sought to be made out by the plaintiff, who has twisted the facts only to mislead this Hon'ble Court. As already submitted, the suit is time-barred and the plaintiff is not entitled to any sum or sums of money from the defendants; further, the plaintiff has failed to provide the services, complete the work and make deliveries as per the purchase orders placed by defendant no. 1 till date, and as such there is no question of the defendants furnishing any security. Prima facie, the suit is a gross abuse and misuse of the process of law and is without any cause of action. Reference is invited to the submissions in the accompanying written statement.
5.THAT the contents of paragraph no. 5 of the application, as stated, are wrong and are denied. It is absolutely wrong and denied that the plaintiff has a prima facie good case in its favour, or that the balance of justice and equity lies in favour of the plaintiff, or that the defendants made any part payment while admitting the debt, or that they have failed to pay the balance of any admitted amount, or that the plaintiff has any such right or interest requiring protection as alleged. All the allegations made by the plaintiff are false, frivolous, concocted, misconceived and contrary to the facts. As already submitted, the plaintiff is not entitled to any relief whatsoever in the present suit. The plaintiff has no prima facie case whatsoever. Reference is invited to the submissions in the accompanying written statement.
6.THAT the contents of paragraph no. 6 of the application, as stated, are absolutely wrong and are denied. It is absolutely wrong and denied that the plaintiff shall be severely prejudiced, or that the plaintiff shall suffer irreparable losses and injuries, or that the defendants will succeed in frustrating, avoiding or delaying the process of this Hon'ble Court and the decree that may be passed, or that no prejudice shall be caused to the defendants, or that the defendants are under any obligation to discharge their liabilities as alleged. All the allegations made by the plaintiff are false, frivolous, concocted, misconceived and contrary to the facts. It is respectfully submitted that the defendants have no liability whatsoever and the present suit is a gross abuse of the process of law; there is consequently no question of any prejudice, loss or injury being suffered by the plaintiff. On the contrary, the suit has resulted in unnecessary harassment to the defendants and is liable to be dismissed with special costs. Reference is invited to the submissions in the accompanying written statement.
The prayer clause and sub-clauses (a) to (c) thereof are wrong and are denied, and the plaintiff is not entitled to any relief.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly dismiss the suit as well as the application filed by the plaintiff, being a gross abuse and misuse of the process of law and being without any locus standi or cause of action, with special exemplary costs in favour of the defendants and against the plaintiff.
Any other relief(s) which this Hon'ble Court may deem fit and proper may also be granted in favour of the defendants and against the plaintiff.
DEFENDANTS
THROUGH:
Counsel's name.
NEW DELHI.
DATEDCOUNSEL.
IN THE HON'BLE HIGH COURT OF DELHI : AT NEW DELHI.
CS(OS) NO.Suit number/Year
IN RE:
M/s Plaintiff company name (application affidavit) Pvt. Ltd.… PLAINTIFF
VERSUS
Defendant company name (application affidavit) Pvt. Ltd. & ANR.… DEFENDANTS
AFFIDAVIT
Affidavit of Shri Deponent's name, aged Deponent's age years, Managing Director of M/s Deponent's company name Pvt. Ltd., Address line, Address PIN code.
I, the above-named deponent, do hereby take an oath and solemnly affirm as under:
1.THAT I am defendant no. 2 and the Managing Director of defendant no. 1, and the authorised person of defendant no. 1. I am well conversant with the facts of the case and competent to swear this affidavit.
2.THAT the contents of the accompanying reply to the application under Order 38 Rules 1 & 5 read with Section 151 CPC have been drafted under my instructions by our counsel, and the same have been read over and explained to me in vernacular and understood by me as correct.
3.THAT the contents of the accompanying reply are not being reproduced herein for the sake of brevity, and the same may kindly be read as part of this affidavit.
DEPONENT.
VERIFICATION
Verified at New Delhi on thisday of Verification month, Year of verification, that the contents of the above affidavit are true and correct to my knowledge, and no part of it is false or wrong.
DEPONENT.
IN THE HON'BLE HIGH COURT OF DELHI : AT NEW DELHI.
I.A. NO. IA number/Year of IA number
IN
CS(OS) NO.Suit number/Year
IN RE:
M/s Plaintiff company name (application) Pvt. Ltd.… PLAINTIFF
VERSUS
Defendant company name (application) Pvt. Ltd. & ANR.… DEFENDANTS
APPLICATION UNDER ORDER VII RULE 11 READ WITH SECTION 151 CPC ON BEHALF OF THE DEFENDANTS
MOST RESPECTFULLY SHOWETH:
1.THAT the above-noted suit filed by the plaintiff against the defendants is pending adjudication before this Hon'ble Court.
2.THAT the defendants have already filed their written statement in the above-noted suit. The contents thereof are not being reproduced herein for the sake of brevity, and the same may kindly be read as part and parcel of this application.
3.THAT the present suit is a gross abuse and misuse of the process of law and has been filed with oblique motives and designs to harass the defendants and drag them into frivolous litigation, and further to usurp the sum of Rs. Amount allegedly usurped (₹)/- paid by the defendants to the plaintiff, while the plaintiff has failed to fulfil its commitments and obligations under the contract towards defendant no. 1. Defendant no. 1 is therefore entitled to a refund of the said amount of Rs. Refund amount claimed (₹)/- from the plaintiff, together with interest. The present suit, as filed by the plaintiff, being legally not maintainable, may kindly be dismissed with special heavy costs.
4.THAT the suit, as filed by the plaintiff, is hopelessly barred by limitation, since, according to the plaintiff's own case, they raised invoices dated First invoice date (day).First invoice date (month).Year of first invoice and Second invoice date (day).Second invoice date (month).Year of second invoice for a total amount of Rs. Total invoiced amount (₹)/-; further, defendant no. 1 made a part payment of Rs. Part payment amount (₹)/- on Part payment date (day).Part payment date (month).Year of part payment, apart from an advance payment of Rs. Advance payment amount (₹)/- on Advance payment date (day).Advance payment date (month).Year of advance payment, leaving an outstanding amount of Rs. Outstanding amount claimed (₹)/-. However, the present suit has been filed by the plaintiff on or after Suit filing date (day).Suit filing date (month).Year of filing of the suit, that is, beyond the period of three years from the dates on which the said invoices were raised and from the date on which the part payment of Rs. Part payment amount (₹)/- was made on Part payment date (day).Part payment date (month).Year of part payment. The suit is therefore legally not maintainable and is liable to be dismissed outright.
5.THAT no cause of action arose in favour of the plaintiff and against the defendants for the present suit, and the suit is without any cause of action; it is hence liable to be dismissed under Order VII Rule 11 of CPC.
6.THAT the suit is also bad for misjoinder of parties, in that the plaintiff has deliberately and mala fide dragged and impleaded defendant no. 2 in the present suit. As per settled law, since defendant no. 1 is a separate legal entity, no suit lies against defendant no. 2 merely because he is the Managing Director of defendant no. 1, and no personal or individual liability has accrued upon defendant no. 2. The suit filed against defendant no. 2 is therefore liable to be dismissed, and defendant no. 2 is liable to be deleted from the array of the parties.
7.THAT the plaintiff has not approached this Hon'ble Court with clean hands and has not stated the true facts, while suppressing material facts from this Hon'ble Court. It is submitted that the plaintiff, through its representatives/officials, induced and allured defendant no.1 with tall claims of its expertise in developing a web portal for wedding planning. On the basis of such representations, inducement and allurement, defendant no.1 bona fide agreed to place a purchase order dated Purchase order date (day).Purchase order date (month).Year of purchase order upon the plaintiff, whereupon the plaintiff again reiterated and reassured defendant no.1 that the said purchase order would be completed to its complete satisfaction and requirements and within the agreed time frame, and further that the web application developed would include a Content Management System together with Content Development & Creation, including creative content and images. It is submitted that it has been specifically stated in the said Purchase Order dated Purchase order date (day).Purchase order date (month).Year of purchase order of the defendants that: "This order is in accordance with the prices, terms, delivery method, and specifications as per the Scope Document and other so many requirements in brief & conditions are mentioned in the purchase order."
8.THAT it is submitted that defendant no.1, in bona fide good faith, trust and belief in the plaintiff, made a payment of Rs. Payment amount (₹)/- along with the purchase order dated Purchase order date (day).Purchase order date (month).Year of purchase order, together with all the terms and conditions of the defendants, to the plaintiff on Payment date (day).Payment date (month).Year of payment, at the time of placing the said Purchase Order. Thereafter, defendant no.1 bona fide made a further payment of Rs. Payment amount (₹)/- to the plaintiff on Payment date (day).Payment date (month).Year of payment. However, to the shock and surprise of defendant no.1, the plaintiff failed to fulfil its commitments, assurances and promises made to defendant no.1, and neither completed nor made deliveries in accordance with the said purchase order dated Purchase order date (day).Purchase order date (month).Year of purchase order of the defendants. Defendant no.1 therefore corresponded with the plaintiff through emails and telephone calls, and repeatedly requested the plaintiff, by such emails and telephonic conversations, to complete the work and make delivery in accordance with the purchase orders. The plaintiff, however, as is apparent, showed interest only in recovering as much money as possible from defendant no.1, and when admittedly no work was completed by the plaintiff, the plaintiff wrongly and intentionally raised the invoices dated First invoice date (day).Purchase order date (month).Year of first invoice and Second invoice date (day).Second invoice date (month).Year of second invoice, which only demonstrates its ill-motivated designs and motives. All the requests and persuasions of defendant no.1 fell on deaf ears, as is clearly evident from the numerous email correspondence and telephonic conversations. Defendant no.1 was in a state of shock and dismay that, despite receiving a substantial amount of Rs.Amount received by plaintiff (₹)/-, the plaintiff had done nothing whatsoever worth the said amount; rather, on account of the intentional and deliberate delay on the part of the plaintiff, defendant no.1 suffered substantial economic loss, as well as loss of expected business and goodwill.
9.THAT it is further submitted that, in spite of the said misconduct and failure on the part of the plaintiff to complete the said purchase order placed by the defendants, the plaintiff produced before this Hon'ble Court a purchase order without any terms and conditions of the plaintiff, and further continued to compel defendant no.1 to make further payments by giving false assurances and promises that the said purchase order would be completed without further delay. In such circumstances, defendant no.1 issued an advance cheque no.Advance cheque number dated Cheque date (day).Cheque date (month).Year of cheque for Rs.Cheque amount (₹)/- against a new purchase order dated New purchase order date (day).New purchase order date (month).Year of new purchase order in favour of the plaintiff, whereupon it was assured to the defendants that the said payment was subject to delivery of the Milestone (Master/Vendor) as per the schedule attached, and that delivery of the milestone was to be made by Milestone delivery date (day).Purchase order date (month).Year of milestone delivery. It was further assured that the plaintiff would strive to achieve the aforesaid milestone earlier. In the said email, the plaintiff again gave the assurance and promise that: "IN CASE THE ABOVE MENTIONED MILESTONE IS NOT ACHIEVED AS PER SCHEDULE ATTACHED, THEN ABOVE PAYMENT SHALL BE REFUNDED AND WILL BE DUE AT THE TIME OF ACHIEVEMENT OF MILESTONE."
10.THAT, however, it is submitted that since the intentions of the plaintiff were mala fide from the very beginning, after receiving the said advance cheque the plaintiff showed no interest whatsoever. Defendant no.1 therefore sent an email dated Email date (day).Email date (month).Year of email to the plaintiff and reiterated that payments would be made only against delivery/achievement of certain milestones/deliverables, as defendant no.1 had by then come to know of the mischievous designs and motives of the plaintiff in procuring the issuance of the said advance cheque. It was also stated in the said email that the plaintiff was to deliver the Creative, Master & Vendor against the said cheque payment, and that it should deliver the Master Vendor by Monday, undertake the UAT (User Acceptance Testing), and thereafter receive payment accordingly. It was also requested that the project be allowed to proceed smoothly, and that the plaintiff refrain from unnecessary interference that would divert the project from its course.
11.THAT it is submitted that it was a further shock to the defendants when they received the email dated Email date (day).Email date (month).Year of email from the plaintiff, in which the plaintiff falsely stated that the Creative had been closed, and further demanded a current-dated payment for continuing the project at its pace for delivery on Delivery date (day).Purchase order date (month).Year of delivery, while threatening that in case payment of Rs.Demanded payment in lacs (₹) lakhs was not made by Payment deadline (day).Payment deadline (month).Year of payment deadline, the resources would be deployed on another project, development would be slowed down, and the delivery of the project would be delayed. In this manner, the plaintiff began to harass and threaten defendant no.1 and to demand payment without fulfilling its own obligations and commitments under the said contract, and admittedly the plaintiff failed to complete the said project and portal, etc., in accordance with the actual purchase orders placed by the defendants with all the terms and conditions.
12.THAT despite receiving the substantial amount of Rs.Amount received by plaintiff (₹)/-, the plaintiff failed to render services worth that amount to defendant no.1, and as such defendant no.1 is legally entitled to recovery of the said amount of Rs.Recovery amount claimed (₹)/- from the plaintiff. However, the plaintiff is not entitled to any amount whatsoever from defendants no.1 & 2, and since no principal amount is due and outstanding, no question of payment of interest arises. The suit, as filed by the plaintiff, is therefore liable to be dismissed with special costs.
13.THAT the suit has not been signed, verified or instituted by a duly authorised and competent person. Shri Name of person who verified plaint is not a duly authorised person, nor is he personally well conversant with the facts of the case, and as such the suit is legally not maintainable and is liable to be dismissed outright.
### P R A Y E R
It is, therefore, most respectfully prayed that the suit, being not maintainable on its very face, may kindly be dismissed by framing a preliminary issue on the maintainability of the suit, with heavy costs, in the interests of justice.
Any other relief which this Hon'ble Court may deem fit and proper be also passed in favour of the defendants/applicant and against the plaintiff.
DEFENDANTS
THROUGH:
NEW DELHI
DATEDCOUNSEL.
IN THE HON'BLE HIGH COURT OF DELHI : AT NEW DELHI.
I.A.NO.IA number (affidavit)IA number year
IN
CS(OS) NO.Suit number/Year
IN RE:
M/S Plaintiff company name (IA affidavit) PVT. LTD.… PLAINTIFF
VERSUS
Defendant company name (IA affidavit) PVT. LTD. & ANR… DEFENDANTS
AFFIDAVIT
Affidavit of Shri Deponent's name, aged about Deponent's age years, Managing Director of M/s Deponent's company name Pvt. Ltd., Address line, Address line, Address line, Address PIN code.
I, the above-named deponent, do hereby take oath and solemnly affirm as under:
1.THAT I am defendant No. 2 and the Managing Director of defendant No. 1, and I am well conversant with the facts of the case and competent to swear this affidavit.
2.THAT the contents of the accompanying application under Order VII Rule 11 read with Section 151 CPC have been drafted by my counsel under my instructions, and the same have been read over and explained to me, and I have understood the same to be correct.
3.THAT, for the sake of brevity, the contents of the accompanying application are not reproduced herein, and the same may kindly be read as part and parcel of this affidavit.
DEPONENT.
VERIFICATION;
Verified at Delhi on thisday of Month of verification (first affidavit), Year of verification, that the contents of the above affidavit are true and correct to my knowledge, and no part of it is false or wrong.
DEPONENT.
IN THE HIGH COURT OF DELHI AT NEW DELHI
IN CS (OS)-Suit number/Year
IN RE-:
Petitioner/plaintiff company name PVT. LTD.… PETITIONER
VERSUS
Respondent/defendant company name PVT. LTD. & ANR… RESPONDENTS
AFFIDAVIT
Affidavit of Shri Deponent's name, aged about Deponent's age years, Managing Director of M/s Deponent's company name Pvt. Ltd., Address line, Address line, Address line, Address line, Address PIN code.
I, the above-named deponent, do hereby take oath and solemnly affirm as under:
1.THAT I am defendant No. 2, the Managing Director of defendant No. 1, and an authorised person of defendant No. 1, and I am well conversant with the facts of the case and competent to swear this affidavit.
2.THAT the contents of the accompanying application under Order VIII Rule 1 read with Section 5 of the Limitation Act for condonation of delay have been drafted by our counsel under my instructions, and the same have been read over and explained to me, and I have understood the same to be correct.
3.THAT, for the sake of brevity, the contents of the accompanying written statement are not reproduced herein, and the same may kindly be read as part and parcel of this affidavit.
DEPONENT.
VERIFICATION;
Verified at New Delhi on thisday of Month of verification (second affidavit), Year of verification, that the contents of the above affidavit are true and correct to my knowledge, and no part of it is false or wrong.
DEPONENT.