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TMI Blog2021 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... vant 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. The plaintiff has established supply of the products to be within time. The defendant has failed to establish short/delayed supply of materials. Thus, the defendant cannot evade the liability. Though the defendant has taken a stand that the cheque is issued as a security towards the transaction between the plaintiff and the defendant, since the plaintiff is able to establish supply of 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. Territorial jurisdiction - HELD THAT:- 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 relating to the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ship and the cheque was not presented for collection on the scheduled date. The plaintiff further contends that despite sufficient time granted to the defendant to make good the payment, the same was not paid. Thus, the suit was filed in Com.O.S. No.5871/2016 for recovery of amount ₹ 1,33,27,421/- including the interest @18% p.a. from the defendant. 5. The defendant contested the suit and denied the liability to pay the price of software component, maintenance and service charges specified in Ex.P3- purchase order. On perusal of the written statement filed by the defendant particularly paragraphs-P, Q, R and S, it is noticed that the defendant has taken a stand that though the hardware components, in terms of the purchase order, were delivered to it, there was delay in supplying the software component. The defendant 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, Maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 component and service component in terms of Ex.P3 were not delivered. However, the paragraph Nos. P, Q, R and S of the written statement filed by the defendant would clearly reveal that the stand of the defendant is not of short supply of the materials covered under the purchase order at Ex.P3. The contention is that the supply was delayed. Thus, the contention relating to alleged short supply cannot be entertained. 15. On the basis of contention of delayed supply the defendant contends that payment due to it from its customer was delayed and consequently the defendant suffered losses. Thus, the defendant contended that it is not liable to make good the claim made by the plaintiff. 16. DW1, in his cross examination admitted issuance of purchase order Ex.P3. It is also forthcoming from the evidence on record that Ex.P8- a cheque bearing No.481704 dated 08.10.2015 for ₹ 1,11,17,024/- is is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que as per schedule date. Email from Surjeet Singh Sachdeva to Lawrence David Dear Sir, Please do not present the CHQ 4817904 dated 8.10.15 drawn on Yes Bank for ₹ 1,11,17,024.00 due to delay in delivery complete Licenses. 18. From the above said communications, there is no difficulty to hold that hardware and software were delivered in time. The defendant had requested the plaintiff to hold the cheque for few more days. In the next email, the defendant has requested not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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