IN THE COURT OF LD. DISTRICT JUDGE (COMMERCIAL COURT), PATIALA HOUSE COURT, NEW DELHI.

CS(COMM) NO. _____ OF 2022.

IN THE MATTER OF:-

XXXX.                                    PLAINTIFF

VERSUS

XXXX.                 DEFENDANT

EVIDENCE BY WAY OF AFFIDAVIT OF THE PLAINTIFF (PW1)

I, XXXX, AGED ABOUT xx YEARS, AR / SIGNATORY OF XXXX. HAVING ITS REGISTERED OFFICE XXXX, DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER :-

1.                 That I am the Deponent, am the Authorized Representative & Signatory in the suit and am 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.                 It is state that the Plaintiff is a company duly incorporated under the provision of the Companies Act, 1956. That since its inception, the Deponent Company has become India’s leading supply chain services company, and provides services through a combination of world-class infrastructure, logistics operation along with the highest quality and cutting-edge engineering and technology capabilities. That the Deponent enjoys high repute in its field of business and caters to clientage at the national and international market.

3.                 It is further state that earlier (at the time of transaction with the Defendant, and also at time of filing the pre-suit mediation) the Deponent company was a private limited company, however, after filing of the pre-suit mediation (and issuance of non-starter report by the DLSA), the status of the company has changed from a private limited company to a limited company, hence, the captioned suit has been filed as and under the name of “Xxxx”, and not “Xxxx”.

4.                 It is further state that the Deponent in the captioned suit is represented through and by its Authorized Representative & Signatory, being duly authorized vide board resolution. That the said representative is the General Counsel of the Deponent Company, and further, the said representative is well versed with the facts and circumstances of the captioned case and has the complete knowledge about the transaction which took place between the parties, and hence, the said representative is competent to file the present suit against the Defendant.

5.                 It is further state that the Defendant is a private limited company having its registered office at “Xxxx”. That the Defendant through its directors (including but not limited to Xxxx, xxx, xxx etc.) along with its authorized representatives, had contacted the Deponent requesting the Deponent to provide the services to the Defendant, and had further assured the Deponent that the due payment shall be remitted to the Deponent in accordance with the mutually agreed terms and conditions between the parties.

6.                 It is further state that the Deponent having adequate facilities, infrastructure, manpower, etc. to provide diversified delivery services was engaged by the Defendant to provide services, including but not limited to providing goods carriage vehicles to the Defendant for moving goods/consignments of the Defendant between designated points etc. (hereinafter to be referred to as the “Services”)., being as, where and when required by the Defendant.

7.                 It is further state that the Defendant had approached the Deponent raising numerous queries and seeking supply of Services, and after rounds of discussions between the parties, the Defendant had entered into a contractual framework with the Deponent and subsequently the Defendant engaged the Deponent for providing Services to the Defendant.

8.                 It is further state that for the supply of Services by the Deponent to the Defendant, the Deponent had entered into a Service Agreement dated 24^th June, 2019 with the Defendant (hereinafter to be referred to as the “Agreement” or “Services Agreement”) pursuant to which the Deponent had agreed to provide the Defendant with the required Services. In addition to numerous other terms and conditions between the parties qua the supply of Services by the Deponent to the Defendant, the Defendant was to make payment to the Deponent within a period of 45 (forty) days from the date of the receipt of the invoice (being pursuant to clause 5.1 of the Agreement). Further, should the Defendant delay in making the payment of the due amount then the Defendant was under an obligation to pay interest @18% per annum against the unpaid invoice to the Deponent (being pursuant to Clause 5.4 of the Agreement)

9.                 It is further state that the Deponent provided the required Services to the Defendant and the said services were duly acknowledged by the Defendant. That the said services were availed by the Defendant for the purpose of shipment and delivery of its goods (including but not limited to furniture) from Defendant’s warehouse/ factory (located at xxx). That the said goods were delivered by the Deponent at the locations as prescribed by the Defendant all over India, including but not limited to at Ahmedabad, Pune, Bangalore etc. That as per the information available with and provided to the Deponent, the said Services were availed by the Defendant for the purpose of shipment and delivery of its goods to Xxxx. [being a warehouse entity/ associate of Xxxx.).

10.            It is further state that the Services provided by the Deponent have been duly acknowledged by the Defendant, and the Deponent (along with the present suit) has filed the relevant documentation qua the Services provided [including but not limited to E-way bills, the Lorry Receipts, the Goods Acknowledgement Receipts, etc., as and what are available qua/ towards each invoice) wherein the factum of the Services being provided by the Deponent is categorically acknowledged as well as proved. That the said documents evidently prove that the Services were duly provided in lieu of the requirements of the Defendant, and the same being duly acknowledged by the relevant parties. That the recipient in the said delivery, being Xxxx, had duly received the goods which the Defendant had engaged the Deponent to deliver, and accordingly the said recipient entity had also duly acknowledged the factum of the said goods being received (the same being duly submitted with/ to the Defendant), hence, it is evident that the services were provided by the Deponent to the Defendant.

11.            It is further state that against the services provided, the invoices were regularly raised by the Deponent and the hard-copy of the said invoices along with the Proof of Delivery [POD’s) were duly handed over/ delivered upon the Defendant seeking payment of the due and payable amount, however, the Defendant failed to make any payment to the Deponent. That the Defendant initially chose to raise false & frivolous issues in order to mitigate its liability (like non-receipt/ loss of documents), regardless, the said frivolous issues were accordingly resolved by the Deponent, however, the Defendant intentionally chose to violate the terms and conditions of the said Agreement by not making the payment.

12.            It is further state that Services were provided starting from June 2019 till August 2019, and the last batch of invoices was raised by the Deponent upon the Defendant on/ around 21.10.2019 seeking payment of the due amount.

13.            It is further state that against each invoice the payment was to be made within 45 (forty five) days from the date of the invoice pursuant to the mutually agreed terms and conditions between the parties, and hence, the interest is due, payable by the Defendant starting from 46^th day of the date of the receipt of the invoice till date of actual payment. That numerous requests have been made by the Deponent for the release of the outstanding balance amount till date; however, to no success.

14.            It is further state that aggrieved by the deceitful and decisive acts of the Defendant and their failure to pay the amount due and payable to the Deponent; the Deponent company was constrained to send a legal notice dated 15^th January 2021 (hereinafter to be referred to as the “Legal Notice”) to the Defendant pursuant to which the Deponent terminated the said Agreement executed between the parties resulting out of non-payment of the amount by the Defendant, and further requested the Defendant to make the payment of the due amount to the Deponent, however to no success as the Defendant failed to make payment of the due & payable amount and till date an amount of/around Rs.16,87,164/- (INR Sixteen Lakh Eighty Seven Thousand One Hundred and Sixty Four) is still due and pending. That the said amount is to be paid in addition to the delayed interest.

15.            It is further state that till date, there is an outstanding amount of/around Rs.16,87,164/- (INR Sixteen Lakh Eighty Seven Thousand One Hundred and Sixty Four) being due and payable by the Defendant, and this being payable along with applicable interest 18% p.a. (“Due Amount”) against such delayed payment of the Due Amount, to the Deponent.

16.            It is further state that against each invoice the payment was to be made within 45 (forty-five) days from the date of the invoice, and hence, interest @18% p.a. is due, payable and to be calculated from the 46^th day of the date of the invoice till actual payment. Numerous requests have been made by the Deponent for the release of the outstanding balance amount till date; however, to no success. That the Deponent has filed a detailed interest calculation wherein the interest has been duly calculated for/towards each invoice qua which payment has not been made, and the said interest has been calculated from the 46^th date of each invoice (being the due date), and has been calculated till 15.08.2022 (i.e. the filing of the captioned suit). That in addition to the said amount, the Defendant is liable to pay additional amount towards interest towards each invoice till the date of realization of payment by the Deponent.

17.            It is further state that the Deponent has been trying to contact the Defendant numerous times requesting the Respondent to pay the Due Amount to the Deponent (vide phone calls and emails dated 24.03.2020, 30.03.2020, 03.04.2020, 24.07.2020, 27.07.2020, 03.08.2020, 12.08.2020 etc.), however, to no success. It was to the utter shock of the Deponent that regardless of the fact that the Deponent had supplied the services of utmost quality to the Defendant, despite the same, the Defendant chose to violate the terms of the Agreement by not making payment of the Due Amount. That this act shows the ulterior motives and malafide intentions that the Defendant had at the time of entering into the said transaction.

18.            It is further state that the Defendant is aware that the Deponent performed its contractual obligations under the aforesaid contractual framework in strict accordance with the terms and conditions as mutually decided between the parties, and the same was to the Defendant’s satisfaction, however, regardless of the same the Defendant has failed to honor its commitments as agreed with the Deponent.

19.            It is further state that the Defendant, against the invoices raised by the Deponent, failed to make payment of the due and outstanding amount to the Deponent. That till date the Defendant has caused huge and colossal loss to the Deponent by violating the terms and conditions of the agreement executed between the parties. That despite numerous requests advanced by the Deponent, the Defendant has failed to make any payment whatsoever to the Deponent, and has blatantly violated the agreement executed between the parties.

20.            It is further state that till date, the Deponent has made numerous attempts to contact the Defendant in every possible manner with the purview of amicably settling the matter, however without success. That the said malafide conduct displays that the Defendant from the start, never had the intention of payment of the due amount to the Deponent.

21.            It is further state that till date, as per the Deponent’s ledger account, there is an outstanding principal amount of / around Rs. 16,87,164/- (INR Sixteen Lakhs Eighty Seven Thousand One Hundred and Sixty Four) being payable in addition to an amount of Rs.8,43,947/- being payable as outstanding interest calculated @18% p.a. starting from the due date of each invoice (i.e. 45^th day of each invoice) till 15.08.2022, and is to be calculated / computed till date of realization.

22.            I hereby state that whatever is stated hereinabove is true and correct to the best of my knowledge.

                                                                        DEPONENT

VERIFICATION:

Verified at New Delhi on ___ day of February, 2024 that the contents of paras 1 to 22 of my above evidence affidavit are true and correct to the best of my knowledge and belief and nothing has been concealed there from.

                                                                                                    DEPONENT