IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS; HARYANA.

C.S. (COMM) NO. _____ OF 2024.

IN THE MATTER OF:-

XXX                     : PLAINTIFF

VERSUS

XXX                                   : DEFENDANTS

I N D E X

S. No.          PARTICULARS                                         PAGES     

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 TH COMMERCIAL COURT ACT, 2015 R/W SECTION 65B OF INDIAN EVIDENCE ACT, 1872.

8.       VAKALATNAMA.                          

-------------------------------------------------------------------------------------

                                                                   PLAINTIFF

THROUGH

DATED:

XXX

Off:- Xxx

Xxx

Ph: xxx

Email: xxx

SYNOPSIS

That the Plaintiff is a is a Limited Liability Company registered under the laws of UAE and is engaged in the business of handbag and leather products, shoes wearing apparel and garments. The present suit is being filed through Sh. Xxx, who is the Authorised Representative of the plaintiff and has also been authorised vide board resolution dated …….. of the plaintiff to file, institute, sign, verify the present suit and to initiate other appropriate actions. Sh. Xxx is fully conversant with the facts and circumstances of the captioned suit, including all the transactions and communications as done with the Defendants and thus is competent to depose and verify the facts for the purpose of filing the present suit on behalf of the plaintiff.

That the Defendant No. 1 is the proprietor of the firm M/s Xxx[hereinafter referred to as “Firm”] and the Defendant No. 2 is the Manager and the Authorised Signatory of the Firm and is actively engaged in the business of the Firm. The Defendant No. 3 acting on behalf of the Defendant No. 1 and the Defendant No. 2 has enticed the Plaintiff into the nefarious design orchestrated by the Defendants. The Defendant No. 2 and Defendant No. 3 have been involved and been coordinating with the Plaintiff throughout the transactions between the Plaintiff and the Firm through Defendants.

The Plaintiff was in lookout for supply of wearing apparels and garments for sale in UAE. As such, the Applicant through Xxx. (a body corporate registered under the Companies Act, 2013) acting as agent of the Plaintiff came in contact with Defendant No. 1 and Defendant No. 2. The Defendant No. 1 and Defendant No. 2 represented to have sufficient manpower, raw materials and machinery to supply goods (being categorized under respective styles) in bulk without delay according to the original samples provided by the Plaintiff. The Plaintiff, through its representatives, conveyed to the Defendants that the goods would be sold in UAE and the sale of garments and wearing apparels is based upon season to season, therefore, the supply of the goods would be required in a timely manner and in case of delay in supply of goods, the Plaintiff shall suffer 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 demands of the Plaintiff. Subsequently, the Plaintiff and the Defendants entered into negotiations, and it was mutually decided that:

A.   The Plaintiff shall place purchase order along with the original clothing articles [hereinafter referred to as “Original Article”] of the relevant styles with the Defendants and the Defendants shall imitate the exact replica [hereinafter referred to as “Samples”] 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 as mentioned by Plaintiff.

B.    Pursuant to approval of the Samples, the Defendants shall manufacture the finally approved Samples in the quantities [hereinafter referred to as “Goods”] as mentioned in the respective purchase orders so 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 Letter of Credit issued in favour of the Defendants equivalent to the value of the Goods ordered vide the respective purchase order; and

E.    The applicable INCOTERM would be FOB (Free on Board) i.e. the Defendants would be obligated to 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 the INCOTERM FOB means it is the duty of the seller to safe transit shipping of the goods to the port of loading via carrier and the liability of goods till loading of goods to the relevant port is upon the seller itself.

The Plaintiff, in light of the aforesaid understanding, placed three purchase orders based on the approved styles with the Firm whereupon the Defendant No. 2 on behalf of the Firm issued three proforma invoices. It is pertinent to mention that the aforementioned proforma invoices so issued by the Defendant No. 2 on behalf of the Firm gave a categorical reference to the respective purchase orders which included INCOTERM FOB, hence, the said INCOTERM was binding upon the Firm.

Pursuant to making requested correction in the Samples as pointed by the Plaintiff, the Plaintiff confirmed a few of the styles as shared by the Defendants; whereupon the Defendants, on the pretext of facing commercial constraints, proposed to alter payment terms from Letter of Credit at sight to 50% advance and remaining 50% against bill of lading. The Plaintiff in utmost good faith agreed to such alteration in the terms of payment. The Defendant No. 2, on behalf of the Firm, issued revised proforma invoice dated 22.06.2023 for a sum of $77,083.09/- [USA Dollar Seventy-Seven Thousand Eighty-Three and Nine Cents only] against the partial supply of goods stated in purchase order dated 01.11.2022 and 14.12.2022 and incorporated the aforesaid revised payment terms. It is pertinent to mention that the reference of purchase order dated 01.11.2022 and 14.12.2022 in the revised proforma invoice dated 22.06.2023 infers that the Firm was under an obligation to ship the Goods to the port at Mumbai.

Accordingly, the Plaintiff paid the Firm 50% advance amounting to $ 38,541.55/- [USA Dollar Thirty-Eight Thousand Five Hundred Forty-One and Fifty-Five Cents only] vide SWIFT transaction dated 07.07.2023 and the Defendant No. 2 has also acknowledged the receipt of 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 getting 50% advance amount the Defendants, for the reasons best known to themselves, have failed to ship the Goods to the port at Mumbai which resulted into loss of opportunity and the attainment of the Plaintiff’s business goals.

Pursuant to having the Plaintiff made payment of the 50% advance amount the writ large malafide of the Defendants became evident whereby the Defendants had been intentionally delaying the shipment of the Goods to the port at Mumbai on one pretext or the other considering the sub-standard quality of samples by the Defendants. Thereafter the Defendants on the pretext having invested in raw materials for manufacturing the Goods sought 50% advance amount to assist the Defendants in situation of financial constraints. Subsequent to securing 50% advance amount from the Plaintiff; the Defendants, shockingly, demanded for the complete 100% payment of the approved styles prior to shipment of the same. The Plaintiff were off guard by the conduct of the Defendants.

Evidently, from the aforesaid facts, the commercial interests of the Plaintiff has been highly prejudiced by the Defendants having illegally retained the 50% advance amount paid against the proforma invoice dated 22.06.2023 and the Plaintiff has suffered loss of opportunity consequential to unwarranted delay in shipping the Goods to the port at Mumbai which is solely attributable to malicious conduct of the Defendants. Moreover, the Defendant No. 2 on behalf of the Firm had issued a false and frivolous legal notice to pressurize the Plaintiff to accede 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 are rescinded.

It is stated that as on the date, the Defendants are liable to repay the advance amount $38,541.55/- [USA Dollar Thirty-Eight Thousand Five Hundred Forty-One and Fifty-Five Cents only] along with 15% interest and damages to make good for the loss of opportunity consequential to the delay in shipment of 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 between the Plaintiff and the representatives of the Firm and seeking recovery of advance amount along with interest and damages being payable by the Defendants to the Plaintiff.

That the Plaintiff has been trying to contact the Defendants regularly and has been trying to meet their officials/ representatives on several occasions, however, all such requests of the Plaintiff have gone in vain. That despite numerous requests being made by the Plaintiff, the Defendants having mischievous and malaise intent from the start, have repudiated the requests of the Plaintiff. That till date, the Plaintiff has been made to suffer huge financial losses including loss of opportunities, and such has caused severe hardships to the Plaintiff for which the Defendants are severally, jointly, and legally liable.

That axiomatic fact that emerged 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 wrongful gains to themselves, and hence, the Defendants have also committed offenses under several other provisions of the Indian Penal Code.

That aggrieved by the deceitful and decisive acts of the Defendants and their failure to repay the advance amount due and payable; the Plaintiff company was constrained to send a legal notice dated ………… (hereinafter to be referred to as the “Legal Notice”) to the Defendants (vide email and speed post) pursuant to which the Plaintiff requested the Defendants to make the payment of the due and payable to the Plaintiff, however, to no success as the said Defendants failed to even reply to the said Legal Notice.

That the plaintiff requested the defendants several times for payment as mentioned above, the defendants have failed and neglected to make the payment which is due on the defendants. The plaintiff being left with no other option but to approach before this Hon'ble Court for recovery of outstanding amount.

That with time, to the dismay of the Plaintiff, the Defendants defaulted in making the payments, and failed to repay the due and payable amount to the Plaintiff despite numerous requests advanced by the Plaintiff. That in lieu of the default of the Defendants in making the payment, the Plaintiff with time raised numerous requests for the same seeking repayment of the advance amount, however, the Defendants kept putting the matter on one pretext or the other, and failed to remit the due amount to the Plaintiff.

The plaintiff being left with no other option but to approach before this Hon'ble Court for recovery of outstanding amount. Hence, the present suit.

LIST OF DATES & EVENTS :-

26.12.2022           :         On/around 26.12.2022, the Plaintiff, relying upon the representations and assurances advanced by the Defendants, got a Letter of Credit issued for a sum of $ 56,720/- [USA Dollar Fifty-Six Thousand Seven Hundred and Twenty only] against the Purchase order S.No. 1 dated 01.11.2022 and communicated the same to the Defendants. It is pertinent to mention that the Defendants were under an obligation prepare the Samples as per the agreed requirements and standard of the Plaintiff and pursuant to approval of the Samples, the Defendants were under an obligation to manufacture the Goods being the approved styles and ship to the port at Mumbai as mutually decided between the parties in a timely manner. It is also pertinent to mention that the Defendant assured to ship the approved 8 styles (as per the original samples provided by the Plaintiff) by 31.01.2023 to the port at Mumbai against the S. No. 1 Purchase order dated 01.11.2022 that 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 of 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. Due to such quality issues, the shipment date 31.01.2023 against the S.No. 1 purchase order was shifted to 10.02.2023 for which the Defendants issued the proforma invoice dated 07.11.2022 having the shipment date as 10.02.2023. To the shock and dismay of the Plaintiff, the Defendants, for the reasons best known to the Defendants, failed to ship the Goods to the port at Mumbai by 10.02.2023 as categorically assured by the Defendants vide proforma invoice dated 07.11.2022.

04.02.2023           :         On 04.02.2023, the Defendants confirmed to the Plaintiff for amendment of the Letter of Credit instead of issuing a fresh Letter of Credit against remaining two proforma invoices dated as 21.12.2022 and 04.01.2023 (total sums to $ 122,830). Therefore, the value of the Letter of Credit firstly issued being for a sum of $ 56,720/- [USA Dollar Fifty-Six Thousand Seven Hundred and Twenty only] was revised to $ 179,550/- [USA Dollar One Hundred and Seventy-Nine Thousand Five Hundred and Fifty only] and the Defendants were also duly informed about the same. It is pertinent to mention that the expiry date of the revised Letter of Credit was 30.05.2023 and it was anticipated that the Defendants would ship all the Goods to the port at Mumbai and complete all three purchase orders by 30.05.2023 as the latest date of shipment mentioned in the aforementioned proforma invoices was 31.03.2023.

03.03.2023           :         In the meantime, the Defendants had furnished Samples of the styles with the Plaintiff and that too at a much-delayed stage; however, some of the previously mentioned Samples were of sub-standard quality and incorrect specification which was duly conveyed repeatedly to the Defendants through the representatives of the Plaintiff. Admittedly, the Defendants also acknowledged these defects in the Samples and the Defendants undertook to rectify the defects. Owing to consistent delay at the end of the Defendants to ship the Goods to the port at Mumbai in terms of the three invoices raised upon the Plaintiff, the Letter of Credit dated 03.03.2023 expired on 30.05.2023.

22.06.2023           :         Pursuant to making requested correction in the Samples as pointed by the Plaintiff, the Plaintiff confirmed a few of the styles as shared by the Defendants; whereupon the Defendants, on the pretext of facing commercial constraints, proposed to alter payment terms from Letter of Credit at sight to 50% advance and remaining 50% against bill of lading. The Plaintiff in utmost good faith agreed to such alteration in the terms of payment. The Defendant No. 2, on behalf of the Firm, issued revised proforma invoice dated 22.06.2023 for a sum of $77,083.09/- [USA Dollar Seventy-Seven Thousand Eighty-Three and Nine Cents only] against the partial supply of goods stated in purchase order dated 01.11.2022 and 14.12.2022 and incorporated the aforesaid revised payment terms. It is pertinent to mention that the reference of purchase order dated 01.11.2022 and 14.12.2022 in the revised proforma invoice dated 22.06.2023 infers that the Firm was under an obligation to ship the Goods to the port at Mumbai.

07.07.2023           :         Accordingly, the Plaintiff paid the Firm 50% advance amounting to $ 38,541.55/- [USA Dollar Thirty-Eight Thousand Five Hundred Forty-One and Fifty-Five Cents only] vide SWIFT transaction dated 07.07.2023 and the Defendant No. 2 has also acknowledged the receipt of 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 getting 50% advance amount the Defendants, for the reasons best known to themselves, have failed to ship the Goods to the port at Mumbai which resulted into loss of opportunity and the attainment of the Plaintiff’s business goals.

20.10.2023           :         Even shockingly, the Defendant No. 2 through his counsel has served a false and frivolous legal notice dated 20.10.2023 which is a testament of writ large malafide of the Defendants and the fraud being played by the Defendants on the Plaintiff. It is stated that the legal notice dated 20.10.2023 is bad in the eyes of law as:

…2023                 :         That aggrieved by the deceitful and decisive acts of the Defendants and their failure to repay the advance amount due and payable; the Plaintiff company was constrained to send a legal notice dated ………… (hereinafter to be referred to as the “Legal Notice”) to the Defendants (vide email and speed post) pursuant to which the Plaintiff requested the Defendants to make the payment of the due and payable to the Plaintiff, however, to no success as the said Defendants failed to even reply to the said Legal Notice.

….2023                          :         That the Plaintiff had filed for pre-suit mediation proceedings on/around …….2023, and the non-starter report was issued on …..2023, hence, the said time period starting from ……..2023 till ……..2023 to be also excluded for the purpose of computation of limitation period.

March, 2024           :         Hence, the present suit.

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS; HARYANA.

C.S. (COMM) NO. _____ OF 2024.

IN THE MATTER OF:-

XXX                    : PLAINTIFF

VERSUS

XXX           : DEFENDANTS

MEMO OF PARTIES

XXX

Having its registered office at:

Xxx

Xxx

Through its AR, Sh. Xxx                     …PLAINTIFF

VERSUS

1.        XXX

Proprietor of Xxx

Available at:

Xxx,

Xxx

2.        XXX

Manager and Authorised Signatory of Xxx

Available at:

Xxx,

Xxx

Email: xxx

3.        XXX

Marketing and Merchandising and Agent of Xxx

Available at:

Xxx,

Xxx

Email: xxx              …DEFENDANTS

-------------------------------------------------------------------------------------

                                                                   PLAINTIFF

THROUGH

DATED:

XXX

Off:- Xxx

Xxx

Ph: xxx

Email: xxx

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS; HARYANA.

C.S. (COMM) NO. _____ OF 2024.

IN THE MATTER OF:-

XXX

Having its registered office at:

Xxx

Xxx

Through its AR, Sh. Xxx                     …PLAINTIFF

VERSUS

1.        XXX

Proprietor of Xxx

Available at:

Xxx,

Xxx

2.        XXX

Manager and Authorised Signatory of Xxx

Available at:

Xxx,

Xxx

Email: xxx

3.        XXX

Marketing and Merchandising and Agent of Xxx

Available at:

Xxx,

Xxx

Email: xxx              …DEFENDANTS

SUIT FOR RECOVERY OF AN AMOUNT OF $38,541.55/- [USA DOLLAR THIRTY-EIGHT THOUSAND FIVE HUNDRED FORTY-ONE AND FIFTY-FIVE CENTS ONLY] ALONG WITH INTEREST, COSTS & DAMAGES.

MOST RESPECTFULLY SHOWETH:-

1.                 That the Plaintiff is a is a Limited Liability Company registered under the laws of UAE and is engaged in the business of handbag and leather products, shoes wearing apparel and garments. The present suit is being filed through Sh. Xxx, who is the Authorised Representative of the plaintiff and has also been authorised vide board resolution dated …….. of the plaintiff to file, institute, sign, verify the present suit and to initiate other appropriate actions. Sh. Xxx is fully conversant with the facts and circumstances of the captioned suit, including all the transactions and communications as done with the Defendants and thus is competent to depose and verify the facts for the purpose of filing the present suit on behalf of the plaintiff.

2.                 That the Defendant No. 1 is the proprietor of the firm M/s Xxx[hereinafter referred to as “Firm”] and the Defendant No. 2 is the Manager and the Authorised Signatory of the Firm and is actively engaged in the business of the Firm. The Defendant No. 3 acting on behalf of the Defendant No. 1 and the Defendant No. 2 has enticed the Plaintiff into the nefarious design orchestrated by the Defendants. The Defendant No. 2 and Defendant No. 3 have been involved and been coordinating with the Plaintiff throughout the transactions between the Plaintiff and the Firm through Defendants.

3.                 The Plaintiff was in lookout for supply of wearing apparels and garments for sale in UAE. As such, the Applicant through Xxx. (a body corporate registered under the Companies Act, 2013) acting as agent of the Plaintiff came in contact with Defendant No. 1 and Defendant No. 2. The Defendant No. 1 and Defendant No. 2 represented to have sufficient manpower, raw materials and machinery to supply goods (being categorized under respective styles) in bulk without delay according to the original samples provided by the Plaintiff. The Plaintiff, through its representatives, conveyed to the Defendants that the goods would be sold in UAE and the sale of garments and wearing apparels is based upon season to season, therefore, the supply of the goods would be required in a timely manner and in case of delay in supply of goods, the Plaintiff shall suffer 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 demands of the Plaintiff. Subsequently, the Plaintiff and the Defendants entered into negotiations, and it was mutually decided that:

F.     The Plaintiff shall place purchase order along with the original clothing articles [hereinafter referred to as “Original Article”] of the relevant styles with the Defendants and the Defendants shall imitate the exact replica [hereinafter referred to as “Samples”] 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 as mentioned by Plaintiff.

G.   Pursuant to approval of the Samples, the Defendants shall manufacture the finally approved Samples in the quantities [hereinafter referred to as “Goods”] as mentioned in the respective purchase orders so 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 get Letter of Credit issued in favour of the Defendants equivalent to the value of the Goods ordered vide the respective purchase order; and

J.      The applicable INCOTERM would be FOB (Free on Board) i.e. the Defendants would be obligated to 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 the INCOTERM FOB means it is the duty of the seller to safe transit shipping of the goods to the port of loading via carrier and the liability of goods till loading of goods to the relevant port is upon the seller itself.

4.                 The Plaintiff, in light of the aforesaid understanding, placed three purchase orders based on the approved styles with the Firm whereupon the Defendant No. 2 on behalf of the Firm issued three proforma invoices; the details of which are as hereunder:

It is pertinent to mention that the aforementioned proforma invoices so issued by the Defendant No. 2 on behalf of the Firm gave a categorical reference to the respective purchase orders which included INCOTERM FOB, hence, the said INCOTERM was binding upon the Firm.

5.                 On/around 26.12.2022, the Plaintiff, relying upon the representations and assurances advanced by the Defendants, got a Letter of Credit issued for a sum of $ 56,720/- [USA Dollar Fifty-Six Thousand Seven Hundred and Twenty only] against the Purchase order S.No. 1 dated 01.11.2022 and communicated the same to the Defendants. It is pertinent to mention that the Defendants were under an obligation prepare the Samples as per the agreed requirements and standard of the Plaintiff and pursuant to approval of the Samples, the Defendants were under an obligation to manufacture the Goods being the approved styles and ship to the port at Mumbai as mutually decided between the parties in a timely manner. It is also pertinent to mention that the Defendant assured to ship the approved 8 styles (as per the original samples provided by the Plaintiff) by 31.01.2023 to the port at Mumbai against the S. No. 1 Purchase order dated 01.11.2022 that 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 of 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. Due to such quality issues, the shipment date 31.01.2023 against the S.No. 1 purchase order was shifted to 10.02.2023 for which the Defendants issued the proforma invoice dated 07.11.2022 having the shipment date as 10.02.2023. To the shock and dismay of the Plaintiff, the Defendants, for the reasons best known to the Defendants, failed to ship the Goods to the port at Mumbai by 10.02.2023 as categorically assured by the Defendants vide proforma invoice dated 07.11.2022.

6.                 On 04.02.2023, the Defendants confirmed to the Plaintiff for amendment of the Letter of Credit instead of issuing a fresh Letter of Credit against remaining two proforma invoices dated as 21.12.2022 and 04.01.2023 (total sums to $ 122,830). Therefore, the value of the Letter of Credit firstly issued being for a sum of $ 56,720/- [USA Dollar Fifty-Six Thousand Seven Hundred and Twenty only] was revised to $ 179,550/- [USA Dollar One Hundred and Seventy-Nine Thousand Five Hundred and Fifty only] and the Defendants were also duly informed about the same. It is pertinent to mention that the expiry date of the revised Letter of Credit was 30.05.2023 and it was anticipated that the Defendants would ship all the Goods to the port at Mumbai and complete all three purchase orders by 30.05.2023 as the latest date of shipment mentioned in the aforementioned proforma invoices was 31.03.2023. It is also pertinent to mention that Plaintiff through its Agent had inspected the Samples furnished by the Defendants against S.No. 2 and 3 purchase; however, upon inspection of the Samples manufactured by the Defendants, it was found that the Samples manufactured by the Defendants were of sub-standard quality and not fitting the specifications of the Plaintiff against the Original Article, and the same was also duly conveyed to the Defendants. It is not out of place to mention that the Defendants lapsed on manufacturing process as per the standards and expectations of the Plaintiff that ultimately culminated into delay in shipment of the required Goods to the port at Mumbai as per the S. No. 2 and 3 proforma invoice as well. Needless to say, in case the Defendants had 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 at the port of Mumbai within the agreed time, the Plaintiff suffered the loss of opportunity consequential to delay in shipment of Goods at the port of Mumbai as had the Goods been shipped to the port at Mumbai within the agreed time, the Plaintiff could have sold the Goods so manufactured by the Defendants within the optimal season and achieve the yearly business goals with the desired profits. As such, the Defendants have inflicted loss of opportunity cost upon the Plaintiff, which is solely attributable to unexplained delay caused by the Defendants.

8.                 In the meantime, the Defendants had furnished Samples of the styles with the Plaintiff and that too at a much-delayed stage; however, some of the previously mentioned Samples were of sub-standard quality and incorrect specification which was duly conveyed repeatedly to the Defendants through the representatives of the Plaintiff. Admittedly, the Defendants also acknowledged these defects in the Samples and the Defendants undertook to rectify the defects. Owing to consistent delay at the end of the Defendants to ship the Goods to the port at Mumbai in terms of the three invoices raised upon the Plaintiff, the Letter of Credit dated 03.03.2023 expired on 30.05.2023.

9.                 Pursuant to making requested correction in the Samples as pointed by the Plaintiff, the Plaintiff confirmed a few of the styles as shared by the Defendants; whereupon the Defendants, on the pretext of facing commercial constraints, proposed to alter payment terms from Letter of Credit at sight to 50% advance and remaining 50% against bill of lading. The Plaintiff in utmost good faith agreed to such alteration in the terms of payment. The Defendant No. 2, on behalf of the Firm, issued revised proforma invoice dated 22.06.2023 for a sum of $77,083.09/- [USA Dollar Seventy-Seven Thousand Eighty-Three and Nine Cents only] against the partial supply of goods stated in purchase order dated 01.11.2022 and 14.12.2022 and incorporated the aforesaid revised payment terms. It is pertinent to mention that the reference of purchase order dated 01.11.2022 and 14.12.2022 in the revised proforma invoice dated 22.06.2023 infers that the Firm was under an obligation to ship the Goods to the port at Mumbai.

10.             Accordingly, the Plaintiff paid the Firm 50% advance amounting to $ 38,541.55/- [USA Dollar Thirty-Eight Thousand Five Hundred Forty-One and Fifty-Five Cents only] vide SWIFT transaction dated 07.07.2023 and the Defendant No. 2 has also acknowledged the receipt of 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 getting 50% advance amount the Defendants, for the reasons best known to themselves, have failed to ship the Goods to the port at Mumbai which resulted into loss of opportunity and the attainment of the Plaintiff’s business goals.

11.             Pursuant to having the Plaintiff made payment of the 50% advance amount the writ large malafide of the Defendants became evident whereby the Defendants had been intentionally delaying the shipment of the Goods to the port at Mumbai on one pretext or the other considering the sub-standard quality of samples by the Defendants. Thereafter the Defendants on the pretext having invested in raw materials for manufacturing the Goods sought 50% advance amount to assist the Defendants in situation of financial constraints. Subsequent to securing 50% advance amount from the Plaintiff; the Defendants, shockingly, demanded for the complete 100% payment of the approved styles prior to shipment of the same. The Plaintiff were off guard by the conduct of the Defendants.

12.             The Plaintiff were shocked by the conduct and audacity of the Defendants whereby:

a.      Firstly, the Defendants repeatedly failed to furnish the Samples as per the agreed requirement and standards of the Plaintiff and sought more time for preparing the orders of the Plaintiff which delayed the shipment of Goods to the port at Mumbai against the assured timelines mentioned in the three purchase orders;

b.     Secondly, the Defendants persuaded the Plaintiff for revised understanding on the pretext of having invested in raw materials sought 50% advance amount and assured that the Goods would be shipped after 50% advance amount and the remaining 50% payment could be made against bill of lading for shipping the approved styles;

c.      Thirdly, when the Defendants had received the 50% advance amount, the Defendants inspite of shipping the Goods to the port at Mumbai refrained from shipping the Goods to the port at Mumbai and demanded for complete 100% advance payment being contrary to the revised mutual undertaking arrived between the parties.

13.             Even shockingly, the Defendant No. 2 through his counsel has served a false and frivolous legal notice dated 20.10.2023 which is a testament of writ large malafide of the Defendants and the fraud being played by the Defendants on the Plaintiff. It is stated that the legal notice dated 20.10.2023 is bad in the eyes of law as:

A.   The Defendant No. 2 has wrongfully alleged that the Plaintiff extended the timelines of the process of finalization and shipping of garments;

B.    The Defendant No. 2 has alleged that the Plaintiff didn’t renew the Letter of Credit upon expiry. It is pertinent to mention that the Defendants delayed the shipment of the Goods to the port at Mumbai from the first instance and it is an admitted fact that owing to revised mutual understanding as arrived vide the revised proforma invoice dated 22.06.2023, the Plaintiff had made the payment of 50% advance amount; therefore, without prejudice the obligation of the Plaintiff to renew the Letter of Credit didn’t exist anymore;

C.    The Defendant No. 2 has maliciously made an inference that the Plaintiff was obliged to pickup the Goods from the premises of the Firm; however, that has never been the case as (1) the revised Proforma invoice incorporated reference to the purchase orders which included FOB INCOTERM, (2) the terms of payment of the revised invoice dated 22.06.2023 itself would 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 22.06.2023 had stated that they were proceeding with the required further steps for shipping;

D.   The Defendant No. 2 has wrongly forfeited the advance 50% payment made by the Plaintiff;

E.    The Defendant No. 2 has maliciously sought payment for the 1^st purchase order, while admittedly, the Defendant No. 2 itself on behalf of the Firm had issued a revised proforma invoice which incorporated revised understanding, underlying which the Plaintiff had made 50% advance payment; and

F.     The Defendant No. 2 illegally sought remaining 50% of the amount of the revised proforma invoice dated 22.06.2022 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 has been highly prejudiced by the Defendants having illegally retained the 50% advance amount paid against the proforma invoice dated 22.06.2023 and the Plaintiff has suffered loss of opportunity consequential to unwarranted delay in shipping the Goods to the port at Mumbai which is solely attributable to malicious conduct of the Defendants. Moreover, the Defendant No. 2 on behalf of the Firm had issued a false and frivolous legal notice to pressurize the Plaintiff to accede 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 are rescinded.

15.             It is stated that as on the date, the Defendants are liable to repay the advance amount $38,541.55/- [USA Dollar Thirty-Eight Thousand Five Hundred Forty-One and Fifty-Five Cents only] along with 15% interest and damages to make good for the loss of opportunity consequential to the delay in shipment of 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 between the Plaintiff and the representatives of the Firm and seeking recovery of advance amount along with interest and damages being payable by the Defendants to the Plaintiff.

16.             That the Plaintiff has been trying to contact the Defendants regularly and has been trying to meet their officials/ representatives on several occasions, however, all such requests of the Plaintiff have gone in vain. That despite numerous requests being made by the Plaintiff, the Defendants having mischievous and malaise intent from the start, have repudiated the requests of the Plaintiff. That till date, the Plaintiff has been made to suffer huge financial losses including loss of opportunities, and such has caused severe hardships to the Plaintiff for which the Defendants are severally, jointly, and legally liable.

17.             That axiomatic fact that emerged 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 wrongful gains to themselves, and hence, the Defendants have also committed offenses under several other provisions of the Indian Penal Code.

18.             That aggrieved by the deceitful and decisive acts of the Defendants and their failure to repay the advance amount due and payable; the Plaintiff company was constrained to send a legal notice dated ………… (hereinafter to be referred to as the “Legal Notice”) to the Defendants (vide email and speed post) pursuant to which the Plaintiff requested the Defendants to make the payment of the due and payable to the Plaintiff, however, to no success as the said Defendants failed to even reply to the said Legal Notice.

7.                That the plaintiff is entitled to recover a sum of $38,541.55/- [USA Dollar Thirty-Eight Thousand Five Hundred Forty-One and Fifty-Five Cents only] along with 15 % 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 as mentioned above.

8.                That the plaintiff requested the defendants several times for payment as mentioned above, the defendants have failed and neglected to make the payment which is due on the defendants. The plaintiff being left with no other option but to approach before this Hon'ble Court for recovery of outstanding amount.

9.                That with time, to the dismay of the Plaintiff, the Defendants defaulted in making the payments, and failed to repay the due and payable amount to the Plaintiff despite numerous requests advanced by the Plaintiff. That in lieu of the default of the Defendants in making the payment, the Plaintiff with time raised numerous requests for the same seeking repayment of the advance amount, however, the Defendants kept putting the matter on one pretext or the other, and failed to remit the due amount to the Plaintiff.

10.            That till date the Plaintiff has been made to suffer huge financial losses including loss of opportunities consequential out of the non-payment of the advance due Amount by the Defendants, and such has caused severe hardships to the Plaintiff for which the Defendants are severally, jointly and legally liable.

11.            That it is pertinent to mention that the Plaintiff, in lieu of the past relationship with the Defendants, had earlier chosen not to resort to any legal mechanism trusting that the Due Amount shall be paid by the Defendants along with the interest shortly, however, the Plaintiff has been constrained to take the legal recourse resulting out of the Defendants’ malafide intentions and dishonest acts.

12.            That the Defendants have till date failed to remit the payment of the Due Amount. That the Defendants are obligated to pay the outstanding amount as per the mutually accepted terms and conditions between the parties, however, regardless of the same the Defendants have failed to honor its commitments as agreed with the Plaintiff.

13.            That without prejudice to the rights and contentions of the Plaintiff, it is pertinent to mention herein that the Defendants even failed to abide by their own commitment as assured by it as they have failed to make payment of the amount due and hence, the conduct and malafide intentions of the Defendants are writ at large.

14.            That the cause of action to file the present suit arose in the month of ………... That the cause of action for the present suit is a continuing and recurring cause of action as the Defendants has failed to repay the advance amount $ 38,541.55/- along with 15% interest to the Plaintiff, and the obligation of the Defendants towards the Plaintiff is still subsisting and continuing, hence, the present suit is being filed is within the prescribed limitation period.

15.            The suit for the purpose of relief of recovery, the said suit is valued INR $38,541.55/- [USA Dollar Thirty-Eight Thousand Five Hundred Forty-One and Fifty-Five Cents only] along with 15 % interest p.a. The Plaintiff has paid the appropriate court fee of Rs……../- towards the same. Further, the Plaintiff undertakes to pay deficient court fees, if any.

16.            That the captioned matter falls within the jurisdiction of this Hon’ble Court as pursuant to the invoices and LoC raised by the Plaintiff (and being duly accepted by the Defendants), the parties had amicably chosen to give jurisdiction to the courts of Gurugram for resolution of disputes between them, furthermore, the Plaintiff is located and registered within the jurisdiction of this Hon’ble Court, hence, this Hon’ble Court has the 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) hence, this Hon’ble Court has the territorial jurisdiction. Moreover, the orders were placed at the registered office of the Plaintiff, and meetings took place at the registered office of the Plaintiff in addition to that the payment requests were made/raised from the registered office of the Plaintiff, hence, this Hon’ble Court has the 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 its registered office which falls within the jurisdiction of this Hon’ble Court, hence, this Hon’ble Court has the jurisdiction.

17.            That the suit comes under the Commercial Dispute definition as defined in Section 2 (1)(c)(xviii) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Court Ordinance, 2015.

18.            That the Plaintiff had filed for pre-suit mediation proceedings on/around ……...2023, and the non-starter report was issued on/around ……...2023, hence, the said time period starting from ……...2023 till …….2023 to be also excluded for the purpose of computation of limitation period, hence, the present suit is within the limitation period.

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 by directing the Defendants to repay the advance amount $38,541.55/- [USA Dollar Thirty-Eight Thousand Five Hundred Forty-One and Fifty-Five Cents only] along with 15 % interest being due and payable to the Plaintiff;

b.     Award interest being payable at the rate of as may be decided by this Hon’ble Court pursuant to Order VII Rule 2A of the CPC, starting from due till the date of filing of the captioned suit along with interest being payable starting from the date of the 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, which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

                                                                             PLAINTIFF

THROUGH

DATED:

XXX

Off:- Xxx

Xxx

Ph: xxx

Email: xxx

VERIFICATION:-

Verified at _____ on this ___ day of March, 2024 that the contents of the statements made in 1 to ….. paragraphs are true to my knowledge, and statements made in …. to ….. paras are based on information received & available which I believe to be correct, and statements made in …. to …. paragraphs are based on legal advice and no part of it is false nor anything material has been concealed therefrom. Last para contains the prayer to this Hon’ble Court.

                                                          PLAINTIFF

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS; HARYANA.

C.S. (COMM) NO. _____ OF 2024.

IN THE MATTER OF:-

XXX                    : PLAINTIFF

VERSUS

XXX           : DEFENDANTS

STATEMENT OF TRUTH

I, Xxx, aged about xx years and Authorised Representative of Xxx having its office at XxxXxx, presently at ____________, do hereby solemnly affirm and declare as hereunder:

1.                 That I, the Deponent, am the AR of the Plaintiff company, and hence, I, the Deponent 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.                 I am sufficiently conversant with the facts of the case and have also examined all relevant documents and records in relation thereto.

3.                 I say that the statements made in 1 to …..paragraphs are true to my knowledge, and statements made in …. to …..paras are based on information received & available which I believe to be correct, and statements made in ……. to …… paragraphs of are based on legal advice and no part of it is false nor anything material has been concealed therefrom.

4.                 I say that there is no false statement or concealment of any material fact, documents or record, and I have included information that relevant for the captioned suit.

5.                 I say that the above-mentioned suit comprises of a total of 1 to …… pages, each of which has been duly signed by me.

6.                 I say 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 that I do not have any other documents in my power, possession, control or custody as of now.

7.                 I state that the Annexures hereto are true copies of the documents referred to and relied upon by me.

8.                 I say that I am aware that for any false statement or concealment, I shall be liable for action taken against me under the law for the time being in force.

DEPONENT

VERIFICATION :-

Verified at March on this ___ day of January, 2024. That the contents of my above Affidavit are true and correct to my knowledge and nothing material has been concealed therefrom.

DEPONENT

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS; HARYANA.

C.S. (COMM) NO. _____ OF 2024.

IN THE MATTER OF:-

XXX                    : PLAINTIFF

VERSUS

XXX           : DEFENDANTS

LIST OF DOCUMENTS

                                                                             PLAINTIFF

THROUGH

DATED:

XXX

Off:- Xxx

Xxx

Ph: xxx

Email: xxx

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS; HARYANA.

C.S. (COMM) NO. _____ OF 2024.

IN THE MATTER OF:-

XXX                    : PLAINTIFF

VERSUS

XXX           : DEFENDANTS

AFFIDAVIT

I, Xxx, aged about xx years and Authorised Representative of Xxx having its office at XxxXxx, presently at ____________, do hereby solemnly affirm and declare as hereunder:

1.                 That the deponent is the AR of the Plaintiff company in the accompanying suit and thus competent to swear this affidavit.

2.                 That the accompanying suit has been drafted under the deponent’s instructions and the contents of the same are true and correct to best of his knowledge and belief. Nothing material has been concealed there from.

3.                 That the contents of accompanying suit may please be read as part and parcel of this affidavit as the same are not being repeated here for sake of brevity.

                                                                    DEPONENT

VERIFICATION:-

Verified at New Delhi on this __ day of March, 2024 that the contents of the above affidavit are true and correct to the best of my knowledge, no part thereof is false and nothing material has been concealed therefrom.

DEPONENT

IN THE COURT OF LD. DISTRICT JUDGE; (COMMERCIAL COURT), DISTRICT GURUGRAM COURTS; HARYANA.

C.S. (COMM) NO. _____ OF 2024.

IN THE MATTER OF:-

XXX                    : PLAINTIFF

VERSUS

XXX           : DEFENDANTS

AFFIDAVIT UNDER ORDER XI RULE 6 (III) OF THE COMMERCIAL COURTS ACT, 2015 READ WITH SECTION 65 B OF THE INDIAN EVIDENCE ACT, 1872

I, Xxx, aged about x years and Authorised Representative of Xxx having its office at XxxXxx, presently at ____________, do hereby solemnly affirm and declare as hereunder:

1.              I say that I am the AR of the Plaintiff Company in the above noted case and well conversant with facts and circumstances of the case and such I am competent to swear the affidavit.

2.              I say that for the purpose of present case I have printed out the emails generated from the information stored in computer belonging to me which is regularly used in ordinary course of business by me.

The printouts of the abovementioned documents are printed under my instruction and have been filed with list of documents.

3.              I say that I have stored information in office computer which is regularly used by me in ordinary course of business and printout have been taken under my instructions from printer which is regularly used by me in the course of business.

4.              I say that I have been advised to state that the conditions of section 65B of the Indian Evidence Act, 1972 are complied with in respect of these documents.

5.              I say that I in particular confirm:-

a)        That the computer system and printer are regularly used by the me to produce the computer output and store such record. 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 was a part of the input which was regularly fed by me to the computer system as a part of the ordinary course of my business activities.

c)        That the computer system as used by me has been operating properly and the documents and their accuracy and contents have not been altered and tampered with during the transfer process in any manner whatsoever.

d)       That the information contained in the computer output is an exact replica and has been produced from the original electronic record and therefore reproduction of the information contained on the Electronic Records therein.

DEPONENT

VERIFICATION:-

Verified at _______ on ___ day of March, 2024 that the contents of my above affidavit are true and correct to the best of my knowledge and belief and nothing material or relevant has been concealed therefrom.       

DEPONENT