9911796707
TMI Blog2021 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... for recovery of Rs. 1,33,27,421/- along with interest @ 18% p.a. is decreed in part, awarding a sum of Rs. 1,12,89,706/- towards principal and interest on the said amount @ 9% p.a. as against the claim of 18% p.a. 2. For convenience, parties to this appeal are referred as per their ranking in the original suit. 3. The facts relevant for adjudication of this appeal are summarised as under: The plaintiff being the wholesale dealer of computer components received purchase order on 25.03.2015 from the defendant. The purchase order comprised of three components namely Hardware, Software licenses, Maintenance and service. The order placed by the defendant referred above is found at Ex.P3. 4. The plaintiff has pleaded that though it has compli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant would further contend that the end user (the customer of the defendant) was not happy with the software supplied by the plaintiff. On account of this, the defendant states that it had to incur losses and payment to the defendant by its customer was delayed. On this premise, the defendant pleads that it is not liable to pay price towards Software licenses, Maintenance and service. However, it is to be noted that the liability to pay price of the hardware is admitted. 6. The defendant further contends that the Commercial Court in Bengaluru has no territorial jurisdiction to entertain the suit on the premise that the cause of action has arisen in Delhi and the Courts in Delhi alone have the jurisdiction to entertain the suit. 7. The d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing points emerge for consideration: (i) Whether the defendant/appellant is able to establish that the materials were not supplied to it in terms of the purchase orders placed by it? OR In the alternative defendant/appellant is not liable to honour the suit claim on account of delayed supply of products specified in the purchase order? (ii) Whether the Commercial Court in Bengaluru has the territorial jurisdiction to entertain the suit? (iii) If so, what order? 13. We have perused the materials available on record and the reasons assigned in the impugned judgment. We have also considered the submissions made at the Bar. 14. During the course of hearing, the learned counsel for the defendant contended that the software componen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Witness volunteers, said cheque was issued as security cheque. Cheque at Ex.P8 was issued by me and bears my signature as well as signature of another Director of the defendant Company. Writings of the said cheque at Ex.P8 are in the handwriting of my accountant (details of the cheque at Ex.P8 were written by my accountant). It is true that date 08.10.2015 is entered in date column at Ex.P8. It is true that the cheque at Ex.P8 was written and issued pursuant to purchase order as per Exs.P3 and P4. Witness volunteers is (sic) subject to complete delivery of products mentioned in the purchase order. (Emphasis supplied) 17. From the above extracted statement of DW1, it is apparent that the cheque was issued by the defendant company towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to present the cheque on the premise there is delay in delivery of complete licenses. It is also relevant to note that the contract for supply of materials between the plaintiff and the defendant is at Ex.P3. This document does not stipulate any time limit for the plaintiff to supply the goods. Even if the contract stipulates any time limit, there is no clause enabling the defendant to cancel the contract or withhold the payment on the ground that the plaintiff has not adhered to the time deadline. Even the defendant while receiving the delivery of the product has not raised objection for alleged delayed supply. The defendant has only requested to put the cheque on hold, which the defendant had issued towards discharge of its liability. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... materials specified in the purchase order and the defendant having failed to establish alleged short supply/delayed supply, assuming that the cheque was issued towards security, then also the said cheque would attract presumption under Section 118 of the Negotiable Instruments Act, 1881 and the defendant has failed to rebut the presumption under Section 118 of the Negotiable Instruments Act, 1881. Accordingly, point No.1 is answered in the negative. 22. The contention relating to the territorial jurisdiction of the Commercial Court in Bengaluru is also considered by the Commercial Judge and based on the admission of DW1, the Court has come to the conclusion that the cause of action has also arisen in Bengaluru. Moreover, the contention rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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