Delhi District Court
Ms Aryav Green Energy Pvt Ltd vs Ms Jackson Engineers Limited (Through … on 6 June, 2025
IN THE COURT OF Ms. NEELAM SINGH
DISTRICT JUDGE (COMM-06),
CENTRAL DISTRICT DISTRICT,
TIS HAZARI COURTS, DELHI
CS (COMM) 538/2023
M/s Aryav Green Energy Pvt. Ltd.,
Through its Director
Sh. Sanjay Kumar Garg,
Having Office at;
906, Tower-B, Lithum Tower,
Sect.-62, Noida, Gautam Buddha Nagar,
Uttar Pradesh-201309 ..... Plaintiff
Vs.
M/s Jakson Engineers Ltd.,
Through its Director/Secretary/Principal Officer,
Registered Office At,
A-626, 6th Floor, DLF Tower-A,
Jasola, New Delhi-110076 .....Defendant
Date of Institution: 03.06.2023
Arguments concluded on : 15.04.2025
Date of Judgment: 06.06.2025
JUDGMENT
Case of the plaintiff
1. Plaintiff has filed the present suit for an amount of Rs,
94,87,100/- against the M/s Jakson Engineers Ltd.
2. It is the case of the plaintiff that on 21.09.2021, one M/s
Geeta Threads Pvt. Ltd, situated at Barnala, Punjab had placed a
purchase order for material supply, installation and
commissioning of 864 KVp solar power generation system with
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 1 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
M/s PV Tech Engineering, 220, Green Avenuc, Nanaksar Road,
Barnala, Punjab.
3. It is further the case of the plaintiff that on the same day
i.e. 21.09.2021 M/s. PV Tech. Engineering had further placed
purchase order of 864 KWP solar power plan consisting of 1583
panels of 545 Wp each Monofacial Solar Modules (Half cut)
with the plaintiff.
4. It is submitted that the plaintiff placed purchase order with
the defendant on 21.09.2021 requiring supply of solar modules
worth Rs.1,85,76,000/- (Rupces One Crore Eighty Five Lacs
Seventy Six Thousand Only). It is stated that delivery of the
material was promised by the defendants latest by first week of
December, 2021. It is further stated that all the terms and
conditions with respect to aforesaid order were discussed in
detail between the parties herein which were agreed and accepted
by both the parties.
5. It is further submitted that as per the arrangement and
agreed and accepted terms and conditions between the parties,
the defendants had to supply 864 KWp of 545 Wp each
Monofacial Solar Modules (Half cut) with 156 No.’s of cells
within stipulated time i.e. latest by 1 st week of December 2021 as
“time was the essence of the project” thus the same were required
to be delivered on time. It is further submitted that the defendants
agreed and accepted the timeline to provide the above mentioned
goods /material with full satisfaction of the Plaintiff and its client
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 2 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
/customer. Further, the Defendants had demanded an advance
payment of Rs. 25,00,000/- (Rupees Twenty Five Lacs Only) for
supply of above mentioned goods / material which was complied
by the Aryav Green Energy plaintiff by giving an advance
amount of Rs. 30,00,000/- (Rupees Thirty Lacs Only) i.e. more
than the demand of the defendants only in order to secure timely
delivery of above said goods/ material.
6. It is further submitted that the defendant Company vide
email dated 23.09.2021 accepted the purchase order of the
Plaintiff and also shared Proforma Invoice dated 22.09.2021
raised by the defendant with the Plaintiff.
7. It is further reiterated that the plaintiff on the basis of
communication and on receiving inputs from the defendant and
in good faith placed a Purchase Order dated 21.09.2021 with the
defendant. It is important to note that time was the essence of
aforesaid purchase order. Further, out of the contracted price, a
sum of Rs. 25,00,000/- (Rupees Twenty Five Lacs Only) was to
be paid by the plaintiff to the defendants in advance and balance
before delivery. It is submitted that on 01.10.2021, the plaintiff
made payment of Rs. 5,00,000/- (Rupees Five Lacs Only) and
on 28.10.2021, the Plaintiff made another payment of
Rs.10,00,000/- (Rupees Ten Lacs Only) as an advance payment.
It is submitted that despite making advance payments, the
defendants neither shared any production plan with the plaintiff
nor gave any satisfactory reply which created huge problem for
the plaintiff as the Plaintiff neither get the assured delivery nor
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 3 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
getting any interest on its hard earned money nor was getting any
satisfactory reply from the defendants. Thereafter the Plaintiff
kept on pursuing the defendants with regard to supply of
aforesaid goods/ material as per the agreed and accepted terms
and conditions as discussed and were mentioned in the purchase
order dated 21.09.2021 and it is only thereafter that the defendant
again reassured and reaffirmed the plaintiff for delivery of
aforesaid goods/ material. The plaintiff again believing the words
of the defendants on 10.01.2022, made another payment of Rs.
15,00,000/- (Rupees Fifteen Lacs Only) as an advance payment.
It is submitted that plaintiff made an excess payment of Rs.
5,00,000/- (Rupees Five Lacs Only) as an advance payment to
the defendant only upon demand of defendant with a view to
secure the delivery of aforesaid goods/ material.
8. It is further the case of the plaintiff that the defendant
suddenly informed the plaintiff that goods could not be supplied
within the stipulated timeline and it would take time to meet the
contractual commitment. This placed the plaintiff in a great
difficulty, however, the plaintiff in order to maintain business
relationship with the defendants took lead and spoke to its client /
customer and ultimately the plaintiff succeeded in getting the
rescheduled timing for supply of material approved/ okayed from
its own client/ customer. The plaintiff paid total amount of Rs.
30,00,000/- (Rupees Thirty Lacs Only) as an advance payment to
the defendants (in excess of the advance amount agreed under the
contract). Thereafter also the plaintiff continued to contact the
defendants and reminded them of their obligation to supply the
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 4 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
contracted goods/ material in time by the rescheduled timeline,
however, the defendants did not give any satisfactory reply and
again failed to supply the goods/ material within the rescheduled
timeline. The Plaintiff had waited and continued to wait for the
said promised delivery and continued to press the defendant for
early supply of the contracted goods/ material as the defendants
were neither ready to return the advance payment of
Rs.-30,00,000/- (Rupees Thirty Lacs Only) nor gave any
satisfactory reply.
9. It is further submitted by the plaintiff that plaintiff dropped
an e-mail dated 15.03.2022 to the defendant informing that any
further delay will lead to huge losses to the plaintiff and also
requested to stick to the timeline as penalties would now be
imposed upon the plaintiff. Thereafter the defendant sent an e-
mail dated 16.03.2022 to the plaintiff acknowledging that the
defendant failed in meeting purchase order timelines and also
rescheduled timeline and became unsuccessful in previous
assurances and further assured and confirmed that the defendants
will not increase price and would honor the purchase order. It is
to be noted that the defendants vide e-mail dated 16.03.2022
themselves admitted their failure of violating the agreed and
accepted terms and conditions.
10. It is further the case of the plaintiff that the plaintiff
dropped an e-mail dated 23.03.2022 to the defendant informing
to complete the delivery of material/ goods in the month of
March, 2022. Further, the defendants again assured and promised
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 5 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
the delivery of material/ goods although informing that the prices
had increased massively during the interim period still they
would absolve the impact by themselves and deliver the
contracted material on the same price and quantity as mentioned
in the purchase order.
11. It is further submitted that the the plaintiff reluctantly
agreed but held the defendant responsible for honoring its
commitment positively, curtly reminding that the plaintiff had
been facing problem with its own customer/ client owing to delay
on part of defendant and had the defendant would have shown
the clear picture, the plaintiff would have opted to purchase
goods of some other brand and the project would have long been
over. The plaintiff further requested for complete supply of the
contracted goods within month of March, 2022 itself.
12. It is submitted that subsequently, the defendants started
demanding amendments in the purchase order which led to
exchange of e-mails and even meetings in the office of
defendant. Lastly vide letter dated 26.04.2022, the defendant
intimated that by this time, the prices of goods had increased
drastically due to which the defendant would be unable to
execute the purchase order at the contracted price. It was
thereafter offered by the defendants that if the plaintiff agrees to
accept delivery at increased prices then the defendant would
share production plan for capacity in next month otherwise the
defendant would be closing the order and returning the advance.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 6 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
13. It is submitted that after receiving of Letter dated
26.04.2022 from the defendant the plaintiff vide email dated
27.04.2022 informed the Defendant that “Since we are under
immense pressure to execute the pending work order at Barnala
in face of professional commitments to our client and stiff
penalties being imposed and in dire need of money, we have no
choice but to accept your proposal of refund of the advance
moneys as we are already running behind the second schedule of
commissioning the solar power plant of our client at Barnala
within the agreed time frame.”
14. It is further submitted that the the above said
communication dated 26.04.2022 of Defendant amounted to
flagrant breach and violation of its contractual commitments
under the Purchase Order dated 21.09.2021. By this time, the
plaintiff had sunk lots of money, labour and expenses in
performing / discharging the purchase order placed on it by M/s
PV Tech. Engineering, Barnala, who in turn repeatedly
communicated that it had completed entire spade/ ground work
and the project was lying unfinished awaiting supply of the
contracted goods from the side of plaintiff. The offer of the
defendant to supply the contracted goods at an increased rate and
that too after elapse of considerable time, was not just, fair and
proper in any manner nor offered in true/ proper business spirit.
The Plaintiff was under severe economic duress / pressure due to
delay in discharge of contractual obligation which not only
invited threats of imposition of penalties by its customer/ client
but also generated undue adverse publicity tending to lower the
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 7 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
reputation of the plaintiff in business circles, as an irresponsible,
un-reliable and un-trust worthy for timely execution of contracts,
due to which other customers / client were shying off from doing
business with the plaintiff. To mitigate its loses, the plaintiff had
no option but to unwillingly accept the offered refund of advance
(which acceptance was neither freely nor voluntarily given much
less in discharge of true accord and satisfaction, rather
tantamount to succumbing to coercion, compulsion, economic
duress and pressure tactics), purchased the contracted material (in
supply of which, the Defendant had defaulted and committed
breach) at enhanced rates prevailing in the market from other
suppliers thus causing grave financial loss in the bargain (though
the said distress purchases were still at lower rates than the
enhanced rates quoted by the defendants in letter dated
26.04.2022).
15. It is also submitted that the defendant not only kept on
promising but also gave assurance to the Plaintiff that they would
honor their commitments with regard to delivery of goods/
material but also acknowledged that they would take on
themselves the burden of enhanced prices, however, the
defendant had not kept their words, promise and assurance;
hence, the Defendants are guilty of unfair trade practice.
Thereafter, on 27.04.2022, the plaintiff place a purchase order to
M/s. Redington (India) Ltd. , PCS-Solar Ahmedabad, Pharmaex,
Sarkhej Bavla Road, Excellon Infra Space LLP, Indus Industrial
Park, Vall, Matoda Ahmedabad (Gujrat), in order to honor its
own commitment to supply the goods to M/s PV Tech.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 8 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Engineering Barnala and /or M/s Geeta Threads Pvt. Ltd.
Barnala. In this regard, the plaintiff had to purchase the
contracted material from M/s Redington (India) Ltd., PCS-Solar
Ahmedabad at price of Rs. 2,45,60,430/- (Rupees Two Crore
Forty Five Lacs Sixty Thousand Four Hundred Thirty Only).
16. It is further submitted that thereafter on 29.04.2022 and
06.05.2022 M/s Redington India Limited issued Invoices for
supply of desired good and Plaintiff paid Rs. 2,75,07,664 /- to the
M/s Redington India Limited. It is also submitted that in these
circumstances, after grave persuasion the plaintiff received sum
of Rs. 30,00,000/- (Rupees Thirty Lacs Only) refunded by the
defendant on 31.05.2022. Here also, the Defendants arbitrarily,
illegally and in a thoroughly unbusiness like manner did not pay
any interest on the substantial advance amount lying deposited
with the Defendant for the past more than 6 (Six) months.
Further, the goods in question had to be purchased by the
Plaintiff in the market at an enhanced price from M/s Redington
(India) Ltd., PCS-Solar Ahmedabad Op. Pharmaex, Sarkhej
Bavla Road, Excellon Infra Space LLP, Indus Industrial Park,
Vall, Matoda, Ahmedabad (Gujrat), in order to honor its own
commitment to supply the goods to M/s PV Tech. Engineering
Barnala and/ or M/s Geeta Threads Pvt. Ltd Barnala. In this
regard, the plaintiff had to purchase the contracted material from
M/s Redington (India) Itd., PCS-Solar Ahmedabad at price of Rs.
2,45,60,430/- (Rupees Two Crore Forty Five Lacs Sixty
Thousand Four Hundred Thirty Only) difference with contracted
price with the Defendant amounting to Rs 59,84,415/- (Rupees
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 9 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Fifty Nine Lacs Eighty Four Thousand Four Hundred Fifteen
Only) which the defendant are solely liable to reimburse and
make good. It is submitted that the plaintiff is further entitled to
recover a sum of Rs. 1,80,000/-(Rupces One Lac Eighty
Thousand Only) being interest at the rate of 12% per annum on
the advance amount of Rs. 30,00,000/- (Rupees Thirty Lacs
Only) lying deposited with the Defendant from the respective
dates of deposit till 31.05.2022. Further, the Customer / Client of
the Plaintiff has also demanded payment of Rs. 13,22,685/-
(Rupees Thirteen Lacs Twenty Two Thousand Six Hundred
Eighty Five Only) as damages on account of loss of generation
suffered by M/s Geeta Threads Pvt. Ltd. Barnala due to delay in
execution of the contract which damage has to be paid off by the
plaintiff to its client M/s PV Tech. Engineering Barnala. A sum
of Rs. 20,00,000/- (Rupees Twenty Lacs Only) is also further
payable by the defendants on account of loss suffered by the
plaintiff due to failed business opportunities i.e. prospective
customers shying off from doing business with the plaintiff due
to the plaintiff’s delay in meeting the contractual time line in
dealing with M/s PV Tech Engineering, 220, Green Avenue,
Nanaskar Road, Barnala and/ or M/s Geeta Threads Pvt. Ltd.
Barnala. Thus in all, the defendants are liable to pay damages to
the tune of Rs. 94,87,100/- (Rupees Ninety Four Lacs Eighty
Seven Thousand One Hundred Only) to the Plaintiff and hence
the present suit.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 10 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Case of the defendant
17. Defendant has contested the suit by filing the present WS.
In his WS, defendant has submitted that the present Suit is an
abuse of the process of law. It is submitted that the present suit
seeking damages is not maintainable, as there is no breach on
part of the defendant Company in terms of the Indian Contract
Act, 1872. Further, there is no loss/ damages due and payable
and the amount purportedly to be claimed by the plaintiff is not
due and payable by the defendant. The present suit is filed only
with the ulterior motive as an arm-twisting tactic to put pressure
upon the defendant and to extort money from the defendant
Company without any cause of action and is an abuse of the
process of law and the same needs to be dismissed with costs.
18. It is further submitted that the instant Suit has been filed by
the Plaintiff claiming an amount of Rs. 94,87,100/- (Rupees
Ninety Four Lacs Eighty Seven Thousand One Hundred Only)
along with pendent-lite interest @ 18% per annum. The break-up
of the amount has been given as follows:
a) Rs. 59,84,415/- (Rupees Fifty Nine Lacs Eighty Four
Thousand Four Hundred and Fifteen Only) as “difference in
contracted price between price offered by one M/s. Redington
(India) Ltd. and Defendant Company”.
b) Rs. 1,80,000/- (Rupees One Lac Eighty Thousand Only)
being “interest at the rate of 12% per annum on the advanceCS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 11 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
amount of INR 30,00,000/- (Rupees Thirty Lacs Only) paid by
the Plaintiff to the Defendant”.
c) Rs. 13,22,685/- (Rupees Thirteen Lacs Twenty Two
Thousand Six Hundred Eighty Five Only) because “the
Customer / Client of the Plaintiff has also demanded payment of
damages on account of loss of generation suffered by M/s Geeta
Threads Pvt. Ltd. Barnala due to delay in execution of the
contract which damage has to be paid off by the Plaintiff to its
client M/s PV Tech. Engineering Barnala”.
d) Rs. 20,00,000/- (Rupees Twenty Lacs Only) on account of
“loss suffered by the Plaintiff due to failed business opportunities
i.e. prospective customers shying off from doing business with
the Plaintiff due to the Plaintiff’s delay in meeting the
contractual time line in dealing with M/s PV Tech Engineering,
220, Green Avenue, Nanaskar Road, Barnala and / or M/s Geeta
Threads Pvt. Ltd. Barnala”.
19. It is also submitted that in lieu of the unforeseen and
sudden change in circumstances, the contract between the parties
stood frustrated and the non-performance on initial terms of the
same cannot be treated as “Breach”. The Plaintiff was well aware
of such unforeseeable and sudden change of circumstances and
yet decided to abandon the contract with the defendant and
instead went ahead to purchase similar goods at a much inflated
price because they were well aware of the fact that the price of
raw materials had gone up exponentially and instead of giving
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 12 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
the courtesy of fairness to the defendant, the plaintiff took refund
and purchased similar goods at higher rate from one M/s
Redington (India) Ltd. only so they could approach this Court
with the instant mala-fide claim for loss/damages only with the
ulterior motive as an arm-twisting tactic to put pressure upon the
defendant and to extort money from the defendant company
without any cause of action as an abuse of the process of law.
20. It is further submitted that the doctrine of frustration is
based on the maxim “Lex non cogit ad Impossibilia”. It means
that ‘Law does not compel the Impossible’. It is submitted that in
a contract between the two parties, there is a fundamental
assumption that the performance of the contract depends upon
the continued existence of a given person or a thing and any
impossibility arising later on (by the perishing of the person or
the thing) shall excuse the performance of the contractual
obligation. Such a condition is implied in all contracts.
21. It is also submitted that it has been made clear by the
Hon’ble Courts from time to time that the word “impossible” has
not been used in the sense of physical or literal impossibility. The
performance of an act may not be literally impossible but it may
be impracticable and useless from the point of view of the object
and purpose which the parties had in view; and if an untoward
event or change of circumstances totally upsets the very
foundation upon which the parties rested their bargain, it can
very well be said that the promisor finds it impossible to do the
act which he promised to do. In the instant case, the sudden and
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 13 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
unforeseeable rise in costs was a fundamental change in
circumstance, and the change was so fundamental that, if the
contract would have still remained (i.e. if the performance
continued) then, it would result in a new and altogether different
contract which is entirely different from that, as originally
concluded by the parties. This is evidenced from the Purchase
Order issued by the Plaintiff to M/s. Redington (India) Ltd. The
change in circumstances were so fundamental that even M/s.
Redington (India) Ltd. only agreed to supply the goods to
Plaintiff at the inflated price viz. Rs. 2,45,45,430/- (Rupees Two
Crore Forty Five Lacs Forty Five Thousand Four Hundred Thirty
Only). Hence the claim of the Plaintiff of Rs. 59,84,415/-
(Rupees Fifty Nine Lacs Eighty Four Thousand Four Hundred
Fifteen Only) as “difference in contracted price between price
offered by one M/s. Redingion (India) Lid and Defendant
Company” is untenable being bad in law.
22. It is further submitted that Further, the Plaintiff is claiming
Rs. 1,80,000/- Rupees One Lac Eighty Thousand Only) being
“interest at the rate of 12% per annum on the advance amount of
Rs. 30,00,000/- (Rupees Thirty Lacs Only) paid by the Plaintiff to
the Defendant”. Whether an advance payment is a deposit or a
mere part-payment depends on what the parties intended when
entering into the contact. Howe v Smith (1884) LR 27 Ch D 89
specified that if a contract expressly describes the advance
payment as a ‘deposit’, but says nothing about whether it is
refundable or not, then it will be classed as a deposit in law.
From this stems the rule that deposits in law are not refundable if
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 14 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
the buyer cancels the contract before completion. In the instant
case, the defendant had given the plaintiff the option to revise the
P.O. vide email dated 26.04.2022 which the plaintiff denied and
instead purchased similar items at much greater rates from M/s
Redington (India) Ltd. Hence, by law the defendant was not
liable to refund the deposit yet in good faith and as a gesture of
goodwill, the defendant returned entire deposit amount of Rs.
30,00,000/- (Rupees Thirty Lacs Only). Therefore, the claim of
the plaintiff of Rs. 1,80,000/- (Rupees One Lac Eighty Thousand
Only) being “interest at the rate of 12% per annum on the
advance amount of INR 30,00,000/- (Rupees Thirty Lacs Only)
paid by the Plaintiff to the Defendant” is untenable being bad in
law.
23. It is also submitted that the plaintiff is further claiming Rs.
13,22,685/- (Rupees Thirteen Lacs Twenty Two Thousand Six
Hundred Eighty Five Only) because “the Customer / Client of the
Plaintiff has also demanded payment of damages on account of
loss of generation suffered by M/s Geeta Threads Pvt. Ltd.
Barnala due to delay in execution of the contract which damage
has to be paid off by the Plaintiff to its client M/s PV Tech.
Engineering Barnala”. Firstly, the demand so made by M/s Geeta
Threads Pvt. Ltd., Barnala is not clear through the Suit of the
Plaintiff as no document evidencing the same has been attached
by the plaintiff whatsoever. Secondly, assuming there is a
demand, the same is to be treated as a matter of dispute between
M/s P.V. Tech Engineering and M/s Geeta Threads Pvt. Ltd.
Barnala and the Defendant is not and cannot be made party to the
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 15 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
same. Thirdly, if loss so incurred by M/s Geeta Threads Pvt. Ltd.
Barmala is an actuality, then the same ought to be
crystallised/determined and proven before this Court which
clearly cannot be done as neither M/s P.V. Tech Engineering nor
M/s Geeta Threads Pvt. Ltd. Barnala have been arrayed as a party
by the Plaintiff in the instant Suit. Hence, the Claim of the
plaintiff of Rs. 13,22,685/- (Rupees Thirteen Lacs Twenty Two
Thousand Six Hundred Eighty Five Only) is untenable as the
same is bad in law.
24. It is also submitted that the Plaintiff has also claimed an
amount of Rs. 20,00,000/- (Rupees Twenty Lacs Only) on
account of “loss suffered by the Plaintiff due to failed business
opportunities i.e. prospective customers shying off from doing
business with the plaintiff due to the plaintiff’s delay in meeting
the contractual time line in dealing with M/s PV Tech
Engineering, 220, Green Avenue, Nanaskar Road, Barnala and /
or M/s Geeta Threads Pvt. Ltd. Barnala”. It is submitted that the
question of ascertaining loss and the quantum of damages is
often a technical undertaking. In view of the rising complexity
of commercial disputes the practice of hiring experts to quantify
loss and damages has become necessary. Courts and tribunals
award damages based on claims made and proven by the parties.
Therefore, the onus of quantifying loss and damages is upon the
party claiming it. This requires knowledge of various industry-
related aspects cases and effects of loss and skills of assessment
and valuation. Further, in the case of a claim for loss of
profitability, not only will the plaintiff have to evince the
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 16 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
causation for the loss but will also have to prove the extent of
loss so incurred through contemporaneous documents. In the
instant case, no expert report/valuation of quantum of loss
suffered, nor any documents which would prove any such loss
claimed by the Plaintiff have been attached by the Plaintiff,
thereby rendering this claim also untenable being bad in law. The
case of the plaintiff has been denied by the defendant in toto.
Issues
25. From the pleadings of the parties, following issues have
been framed on 15.12.2023 as under:-
i) Whether the suit of the plaintiff is not
maintainable in terms of Commercial Courts Act,
2015? OPD
ii) Whether the suit is properly instituted
through AR of the plaintiff company? OPD
iii) Whether there is no cause of action in
favour of plaintiff and against the defendant?
OPD
iv) Whether the plaintiff is entitled for a decree
of recovery of an amount of Rs. 94,87,100/- in
favour of plaintiff and against the defendant? OPP
v) Whether the plaintiff is entitled for interest
on the decreetal amount, if yes, than for which
period and at what rate? OPP
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 17 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
vi) Whether the plaintiff is also entitled for cost
of the suit? OPP
vii) Relief.
Plaintiff’s Evidence
26. In order to prove its case, the plaintiff has examined Sh.
Sanjay Kumar Garg as PW-1. He tendered his evidence by way
of affidavit Ex PW1/1. The witness relied upon the following
documents:-
i) Certified true copy of Board resolution dated
25.04.2023 as Ex.PW1/A.
ii) Copy of purchase order dated 21.09.2021
between M/s Geeta Threads Pvt Ltd. and M/s PV
Tech Engineering as Ex.PW1/B (OSR).
iii) Copy of purchase order dated 21.09.2021
between M/s PV Tech. Engineering and plaintiff
company as Ex. PW1/C (OSR).
iv) Copy of electronic copy of purchase order
dated 21.09.2021 between plaintiff company and
defendant company as Ex. PW1/D.
v) Copy of electronic copy of performa invoice
dated 22.09.2021 issued by defendant company to
plaintiff company as Ex. PW1/E.
vi) Copies of print out of emails dated
20.09.2021, 21.09.2021, 23.09.2021, 15.03.2022
and 16.03.2022 exchanged between plaintiff and
defendant company as Ex. PW1/F (colly).
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 18 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
vii) Copy of print out of email dated 23.03.2022
written by plaintiff company to the defendant
company as Ex PW1/G.
viii) Copy of print out of letter dated 26.04.2022
sent through email by the defendant company to
plaintiff company Ex.PW1/H.
ix) Copy of print out of email dated 27.04.2022
written by the
plaintiff company to defendant company as
Ex.PW1/I.
x) Copy of electronic purchase order dated
27.04.2022 issued by plaintiff company to the
Redington India Ltd. as Ex PW1/J.
xi) Copies of invoices issued by Redington India
Ltd. as Ex.PWI/K(colly) (OSR).
xii) Electronic copy of payment chart and bank
account statement of plaintiff company as
Ex.PW1/L (colly).
xiii) Copy of letter dated 15.06.2022 issued by PV
Tech. Engineering as Ex.PW1/M(OSR).
xiv) Copies of legal notice dated 06.06.2022 and
reply dated 24.06.2022 as Ex.PW1/N (colly).
xv) Original non starter report dated 21.02.2023
as Ex.PW1/O.
xvi) Certificate u/s 65 B of Indian Evidence Act as
Ex.PW1/P.
xvii) Declaration of oath under Order XI Rule 6
(3) of commercial courts Act as Ex.PW1/Q.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 19 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
27. During his cross examination on 24.07.2024, PW-1
deposed that plaintiff is an old player in supply, installation,
testing and commissioning of solar power plants. PW-1 also
deposed that he is in this field since 2010 and completed more
than hundreds and thousands of projects by now. PW-1 further
deposed that the amount invested by the plaintiff in the projects,
depends on each project. PW-1 deposed that he has not
impleaded Geeta Threads Ltd. as a party in this case as the order
has not been directly placed before him and it was placed through
P.V. Tech, Barnala. PW-1 also deposed that the basic problem is
between the Jackson and Aryav Green and not with Geeta
Threads Ltd. or P.V. Tech. PW-1 further deposed that both the
parties were agreed and were aware about the increase of cost in
the levy. PW-1 admitted that the duty freight and cost of raw
material has also increased drastically and that all these facts
were duly communicated by the defendant to the plaintiff vide e-
mail dated 26.04.2022 and in the same mail, defendant accepted
to absorb all the increased cost because the delay in delivery of
material from their side. PW-1 deposed that advance amount of
Rs.30 Lakhs has been returned by the defendant in the month of
May, 2023. He has volunteered that it was returned after
confirming by the defendant that they are not able to deliver the
material at the same cost. PW-1 also deposed that defendant was
not able to perform his part of contract and for that purpose, the
contract has been rescind with the defendant. PW-1 also deposed
that defendant asked for more price to deliver the material to
plaintiff whereas M/s Redington India Ltd. provided the material
immediately at a lower price what the defendant was asking.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 20 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
PW-1 admitted that he has not placed any document on record
with regard to para 20 of his evidence affidavit.
28. Plaintiff also examined Sh. Prateek Gupta as PW-2 who
tendered his evidence by way of affidavit Ex.PW2/1. He relied
upon following documents:-
i) Copy of purchase order dated 21.09.2021 which
was already exhibited as Ex.PW1/B.
ii) Copy of purchase order No. 6A/2021-22 dated
21.09.2021
which was already exhibited as Ex.PW1/C.
iii) Copy of letter dated 15.06.2022 which was
already exhibited as Ex.PW1/M.
29. During his cross-examination by Ld. Counsel for
defendant, PW-2 deposed that the stocks were readily available
with the Reginton at that time and for that reason plaintiff had
purchased the goods from him and not from the defendant as at
that time, defendant was only in the process of confirmation,
whereas, stocks were readily available with Reginton. PW-2
admitted that they have informed the defendant about the price
rise of the goods and have also apprised him about the delivery
of the goods. The following questions were asked from the
witness:
Q: Did you quantify the damages in the case of increase of
price of the goods?
A: Yes.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 21 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Q: How you reach to the price of Rs. 13,22,085/- and what were
its basis?
A: There was a clause between me and my client M/s Geeta
Thread Ltd for the power generation loss which is mentioned in
the purchase order and on these basis we have calculated the
amount to Rs. 13,22,685/-.
Q: Do you share a close relationship with plaintiff company?
A: Yes.
Thereafter, plaintiff has closed PE.
Defendant evidence
30. Defendant has examined DW-1 Sh. Arindam Tripathi who
tendered his evidence by way of affidavit Ex.DW1/A and he
relied upon a letter sent by the defendant to the plaintiff dated
26.04.2022 which was de-exhibited as Ex.DW-1/1 and the same
was marked as Mark-A. During his cross-examination on
23.10.2024, DW-1 deposed that he joined defendant company in
November 2023 and whatever he has stated in his affidavit
Ex.DW1/A is based on the records of the defendant company.
DW-1 also deposed that he is Legal Assistant with the defendant
company. DW-1 admitted that he has no knowledge about the
technicalities of the product. DW-1 also admitted that the
material which was ordered by the plaintiff company was not
supplied by the defendant within stipulated period or even after
extended period. DW-1 further admitted that if the plaintiff
would have agreed for the increased price then the defendant
would have supplied the material. The witness was shown a
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 22 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
notification of Government of India dated 09.03.2021 and he
accepts that by this notification the Government of India
increased the Custom Duty etc w.e.f. 01.04.2022 and the said
notification was exhibited as Ex.DW1/P1. The witness was
shown an email dated 16.03.2022 at 17:36 sent to the plaintiff
company and he admitted the said email and the same was
exhibited as Ex.DW1/P2. DW-1 further deposed that he is not
aware as to what was the price difference between the original
purchase price and the rate offered by the defendant later on.
31. DW-1 was shown an email dated 26.04.2022 from
defendant to Sh. Sanjay Garg of plaintiff company and he
admitted the email sent by the defendant company. The said
email was already exhibited collectively with other emails as
Ex.PWI/H and specifically, then exhibited as Ex.DW1/P3. The
following questions were asked from the witness:
Q: Is it correct that even in email Ex.DW1/P3 schedule of
delivery of goods has not been mentioned?
A: Yes. It is correct. (Vol. In the email we have asked the plaintiff
to revert whether or not they are ready for increase and to reply
within two days).
32. DW-1 deposed that he is not aware if the plaintiff has
procured the said material from Radington India Ltd. at 27.7 wp.
DW-1 admitted that the defendant could not supplied the material
at the agreed rate within the stipulated time. Thereafter,
following questions were asked from the witness:
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 23 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Q: The prices of the product gone high whether within the
agreed period of supply or after that?
A: The prices of the product gone high within the agreed
period of supply.
Q: Is it correct that when the proforma invoice was raised by
the defendant followed by purchase order by the plaintiff and
finalization of the contract of the supply of the material, the
office memorandum dated 09.03.2021 was already existing that
this increase will be effective from 01.04.2022?
A: It is correct. The effect of office memorandum is well
within the knowledge of defendant.
Q: Is is correct that you retain advance money of Rs. 30 lacs
paid by plaintiff for more then seven months and refunded the
same on 31.05.2022 without interest?
A: I do not think so. Q: Whether any interest was paid on Rs. 30 lacs by the defendant company? A: As per record no interest was paid. Q: What are the basis to your answers to the above
suggestion that there is no breach of contract?
A: My answer to the abovesaid suggestion is based on
document Ex. PW1/H.
Thereafter, defendant has closed DE.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 24 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Findings of the Court
33. I have heard arguments of both the parties in detail and
perused the case file. On the basis of documents placed on record
by both the parties and pleadings of the parties, my issue wise
findings are as below:
Issue (i) : Whether the suit of the plaintiff is not maintainable
in terms of Commercial Courts Act, 2015? OPDIssue (ii): Whether the suit is properly instituted through AR
of the plaintiff company? OPD
34. Both the issues are taken together as they are
interconnected. The onus to prove both these issues, in
accordance with established legal principles, lay squarely upon
the defendant. Ld. Counsel for defendant has advanced a two-
pronged objection: firstly, that the instant suit constitutes an
“abuse of the process of law” and lacks maintainability under the
Commercial Courts Act, 2015; and secondly, that the suit has not
been properly instituted through the Authorized Representative
(AR) of the plaintiff company. Addressing the first contention,
concerning the maintainability of the suit under the Commercial
Courts Act, 2015, it is imperative to refer to the statutory
framework governing commercial disputes. The Commercial
Courts Act, 2015, was enacted with the express objective of
facilitating the expeditious and efficient resolution of high-value
commercial controversies. Section 2(1)(c) of the Act provides an
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 25 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
exhaustive definition of what constitutes a “commercial dispute.”
Section 2(1) (c) of the Act is reproduced hereunder:
“”commercial dispute” means a dispute arising out of–
(i)ordinary transactions of merchants, bankers, financiers
and traders such as those relating to mercantile documents,
including enforcement and interpretation of such documents;
(ii)export or import of merchandise or services;
(iii)issues relating to admiralty and maritime law;
(iv)transactions relating to aircraft, aircraft engines, aircraft
equipment and helicopters, including sales, leasing and
financing of the same;
(v)carriage of goods;
(vi)construction and infrastructure contracts, including
tenders;
(vii)agreements relating to immovable property used
exclusively in trade or commerce;
(viii)franchising agreements;
(ix)distribution and licensing agreements;
(x)management and consultancy agreements;
(xi)joint venture agreements;
(xii)shareholders agreements;
(xiii)subscription and investment agreements pertaining to
the services industry including outsourcing services and
financial services;
(xiv)mercantile agency and mercantile usage;
(xv)partnership agreements;
(xvi)technology development agreements;
(xvii)intellectual property rights relating to registered and
unregistered trademarks, copyright, patent, design, domain
names, geographical indications and semiconductor
integrated circuits;
(xviii)agreements for sale of goods or provision of services;
(xix)exploitation of oil and gas reserves or other natural
resources including electromagnetic spectrum;
(xx)insurance and re-insurance;
(xxi)contracts of agency relating to any of the above; and
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 26 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
(xxii)such other commercial disputes as may be notified by
the Central Government.”
35. A meticulous examination of the above provision reveals
its broad ambit, encompassing a wide array of mercantile
transactions and commercial relationships. Specifically pertinent
to the present case, sub-clause (vi) of Section 2(1)(c) explicitly
includes “agreements relating to sale of goods,” while sub-clause
(vii) further extends this to “transactions relating to mercantile
documents, including enforcement and interpretation of such
documents.” The factual matrix as delineated in the pleadings and
evidence unequivocally demonstrates that the basis of the present
dispute lies in a Purchase Order dated 21.09.2021 (Ex. PW1/D).
This document evidences a formal agreement between the
plaintiff, M/s Aryav Green Energy Pvt. Ltd., and the defendant,
M/s Jakson Engineers Ltd., for the supply of 864 KWp solar
power plant modules, comprising 1583 panels of 545 Wp each
Monofacial Solar Modules (Half cut), valued at Rs.
1,85,76,000/-. This is indisputably a contract for the sale of goods
in a commercial setting. The plaintiff’s claim for recovery of Rs.
94,87,100/-, encompassing heads such as the difference in
contracted price, interest on advance payment, and damages for
loss of generation and failed business opportunities, directly
flows from the alleged breach of this very commercial contract.
36. I could lay my hand on the landmark judgment of Hon’ble
Supreme Court in the case of Ambalal Sarabhai Enterprise Ltd.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 27 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Vs. K.S. Infraspace LLP Ltd. (2020 SCC OnLine SC 316)
wherein it has been held as under:
“27. The object and purpose of the establishment of Commercial
Courts, Commercial Divisions and Commercial Appellate
Divisions of the High Court is to ensure that the cases involved
in commercial disputes are disposed of expeditiously, fairly and
at reasonable cost to the litigants. Keeping in view the object
and purpose of the establishment of the Commercial Courts and
fast tracking procedure provided under the Act, the statutory
provisions of the Act and the words incorporated thereon are to
be meaningfully interpreted for quick disposal of commercial
litigations so as to benefit the litigants especially those who are
engaged in trade and commerce which in turn will further
economic growth of the country.”
37. Therefore, the subject matter of the present suit falls
squarely within the statutory definition of a “commercial dispute”
as contemplated by the Commercial Courts Act, 2015. The
defendant’s assertion of “abuse of the process of law” or “non-
maintainability” is a bare allegation, unsupported by any specific
legal provision or factual particularity that would divest this
Court of jurisdiction under the Act. No cogent evidence or legal
argument has been advanced by the defendant to demonstrate
how a dispute stemming from a documented commercial
transaction for the sale of goods could fall outside the purview of
this specialized legislation. The very purpose of the Act is to
provide an expedited forum for such controversies.
Consequently, in the absence of any substantive rebuttal, the
Court finds that the suit is indeed maintainable under the
provisions of the Commercial Courts Act, 2015.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 28 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
38. Turning now to the second issue, equally fundamental
issue, concerning the proper institution of the suit through the
Authorized Representative of the plaintiff company, the burden
of proof this issue also lies upon the defendant. To establish its
proper representation, the plaintiff examined Sh. Sanjay Kumar
Garg as PW-1. In his evidence by way of affidavit, Ex.PW1/1,
PW-1 explicitly relied upon and exhibited the Certified True
Copy of the Board Resolution dated 25.04.2023, marked as
Ex.PW1/A. A Board Resolution serves as the authoritative
instrument by which a corporate entity formally vests power in
an individual to act on its behalf in legal proceedings. It is the
definitive proof that the person initiating or defending a legal
action does so with the express sanction and authority of the
corporate body itself, thereby precluding any question of
unauthorized or ultra vires action.
39. The legal position is fortified by decisions of both the
Hon’ble Supreme Court as well as our own Hon’ble Delhi High
Court. In Union Bank of India Vs. Naresh Kumar & Ors.
(1996) 6 SCC 660, Hon’ble Supreme Court has held as under:
“It cannot be disputed that a company like the appellant can sue
and be sued in its own name. Under Order 6 Rule 14 of the Code
of Civil Procedure a pleading is required to be signed by the party
and its pleader, if any. As a company is a juristic entity it is
obvious that some person has to sign the pleadings on behalf of
the company. Order 29 Rule 1 of the Code of Civil Procedure,
therefore, provides that in a suit by against a corporation the
Secretary or any Director or other Principal officer of the
corporation who is able to depose to the facts of the case might
sign and verify on behalf of the company. Reading Order 6 Rule 14
together with Order 29 Rule 1 of the Code of Civil Procedure it
would appear that even in the absence of any formal letter of
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 29 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
authority or power of attorney having been executed a person
referred to in Rule 1 of Order 29 can, by virtue of the office which
he holds, sign and verify the pleadings on behalf of the
corporation. In addition thereto and de hors Order 29 Rule 1 of
the Code of Civil Procedure, as a company is a juristic entity, it
can duly authorise any person to sign the plaint or the written
statement on its behalf and this would be regarded as sufficient
compliance with the provisions of Order 6 Rule 14 of the Code of
Civil Procedure. A person may be expressly authorised to sign the
pleadings on behalf of the company, for example by the Board of
Directors passing a resolution to that effect or by a power of
attorney being executed in favour of any individual. In absence
thereof and in cases where pleadings have been signed by one of
it’s officers a Corporation can ratify the said action of it’s officer
in signing the pleadings. Such ratification can be express or
implied. The Court can, on the basis of the evidence on record,
and after taking all the circumstances of the case, specially with
regard to the conduct of the trial, come to the conclusion that the
corporation had ratified the act of signing of the pleading by it’s
officer.”
40. The Hon’ble Delhi High Court in Nibro Ltd. Vs. National
Co. Ltd. (AIR 1991 Del 25), while dealing with a similar issue
held as under:
“13. Order 3, rule 1 provides that any appearance, application or
act in or to any court required or authorise by law can be made or
done by the party in person or by his recognized agent or by a
pleader appearing, applying or acting, as the case may be, on his
behalf. Provided of course, such an appearance, application or act
in or to any court is required or authorised by law to be done or
done by a party in such court. Where, however, there is an express
provision of law, then that provision will prevail. Thus, if an
authority is given to a pleader or a recognised agent as provided
by law, the recognised agent or pleader can file an appearance or
file a suit in court if the party himself is not in a position to file it.
In my view, if a party is a company or a corporation, the
recognised agent or a pleader has to be authorise by law to file
such a plaint. Such an authority can be given to a pleader or an
agent in the case of a company by a person specifically authorised
in this behalf. In other words, a pleader or an agent can be
authorised to file a suit on behalf of a company only by an
authorised representative of the company. If a director or a
secretary is authorised by law, then he can certainly give the
authority to another person as provided under Order 3, rule 1.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 30 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
14. Order 29, rule 1 of the Code of Civil Procedure provides for
subscription and verification of pleadings and states that in suits
by or against the corporation, any pleadings may be signed and
verified on behalf of the corporation by the secretary or by any
director or other principal officer of the corporation who is able to
depose to the facts of the case.”
41. During detailed cross-examination of PW-1, the counsel
for defendant was afforded every opportunity to challenge the
authenticity, validity, or scope of this Board Resolution
(Ex.PW1/A). PW-1’s testimony regarding his authority, supported
by the board of resolution, remained uncontrovered as far as the
validity/ authenticity of the board resolution is concerned.
Furthermore, the defendant’s own witness, DW-1 Sh. Arindam
Tripathi, who joined the defendant company in November 2023,
deposed that his statements were based on the records of the
defendant company. Crucially, DW-1 did not present any
evidence, document, or argument to contradict the validity or
existence of the Board Resolution (Ex.PW1/A) produced by the
plaintiff. His testimony primarily focused on the commercial
aspects of the dispute, such as price increases and delays, rather
than the procedural legitimacy of the plaintiff’s representation. In
legal jurisprudence, the production of a valid and unchallenged
Board Resolution, specifically authorizing the named individual
to represent the company in the particular litigation, is considered
sufficient and conclusive proof of proper institution. The
defendant’s bare assertion that the suit was not properly instituted
through the AR is, therefore, an unproven allegation, lacking any
substantiating evidence. The plaintiff has meticulously
discharged its burden of proving that Sh. Sanjay Kumar Garg was
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 31 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
indeed duly authorized to institute the present suit. Accordingly,
Issue (i) and Issue (ii) are decided concurrently and
comprehensively in favour of the plaintiff and against the
defendant.
Issue (iii): Whether there is no cause of action in favour of
plaintiff and against the defendant? OPD
42. The Court now turns to Issue (iii), which involves the
question whether a cause of action exists in favour of the plaintiff
and against the defendant. The burden of proving the non-
existence of a cause of action lay squarely upon the defendant. A
“cause of action” is not a mere formality; it is the bedrock of any
legal claim. It refers to the complete set of facts that, if taken as
true and proven, would establish the plaintiff’s legal right to seek
a remedy from the defendant. In essence, for the defendant to
succeed on this issue, it would need to demonstrate that even
assuming the truth of every fact pleaded by the plaintiff, these
facts collectively fail to disclose any legal basis for holding the
defendant liable or granting the plaintiff the desired relief.
43. The basis of the claim of the plaintiff is the Purchase Order
dated 21.09.2021 (Ex. PW1/D). This document is not a mere
piece of paper; it stands as the foundational contract between the
plaintiff, M/s Aryav Green Energy Pvt. Ltd., and the defendant,
M/s Jakson Engineers Ltd. Through this order, the plaintiff
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 32 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
committed to purchase a significant quantity of 864 KWp solar
power plant modules, specifically 1583 panels of 545 Wp each
Monofacial Solar Modules (Half cut), for a total value of Rs.
1,85,76,000/-. The defendant’s acceptance of this Purchase Order
transformed it into a mutually binding agreement. A critical term
of this contract, as explicitly pleaded by the plaintiff was that
“time was the essence of the project,” with the delivery of the
material unequivocally promised by the first week of December,
2021. This established a clear and non-negotiable contractual
obligation on the defendant’s part to supply the goods within that
precise timeframe.
44. Further demonstrating its commitment and the seriousness
of the project, the plaintiff made substantial advance payments
totaling Rs. 30,00,000/- to the defendant. It is important to note
that this amount even exceeded the defendant’s initial demand for
advance payment. The plaintiff’s explicit purpose for making this
additional payment was “in order to secure timely delivery” of
the crucial solar modules. This act underscores the plaintiff’s
proactive adherence to its contractual obligations and its reliance
on the defendant’s promise of timely performance.
45. However, the subsequent events, as meticulously detailed
in the plaintiff’s case, reveal a progressive deterioration of the
defendant’s performance. The defendant failed to meet the initial
delivery timeline. As stated by Ld. Counsel for the plaintiff, the
defendant “suddenly informed the plaintiff that goods could not
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 33 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
be supplied within the stipulated timeline.” This initial failure,
though perhaps attributable to unforeseen circumstances at that
nascent stage, marked the first deviation from the agreed terms.
Despite this setback, the plaintiff, acting diligently to safeguard
its project and maintain its business relationship, took the
initiative to reschedule the timing for material supply with its
own client. This demonstrated the plaintiff’s earnest efforts to
mitigate the consequences of the defendant’s delay. Yet, even
with this rescheduled and extended timeline, the defendant again
failed to supply the goods/material.
46. The existence of a clear cause of action is further bolstered
by the defendant’s own admissions and conduct. Facing
continued delays, the plaintiff sent an e-mail dated 15.03.2022
(Ex. PW1/F), unequivocally warning the defendant of “huge
losses” that would accrue due to the delay and urging adherence
to the revised timeline. Crucially, in response, the defendant, vide
email dated 16.03.2022 (Ex. DW1/P2), made a highly significant
admission. The defendant’s communication itself acknowledged
its failure in meeting purchase order timelines and the
rescheduled timeline, further admitting to having became
unsuccessful in previous assurances. This explicit admission by
the defendant’s own communication constitutes a powerful
acknowledgment of its default and breach of fundamental
contractual obligations. Even after this, the defendant provided
further assurances, promising that despite massively increased
prices in the interim, they would absolve the impact by
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 34 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
themselves and deliver the contracted material on the same price
and quantity. These repeated promises, followed by continued
non-performance, aggravated the plaintiff’s position.
47. Ultimately, contrary to all previous assurances and
commitments, the defendant’s definitive stance came in its letter
dated 26.04.2022 (Ex. PW1/H and Ex. DW1/P3). In this
communication, the defendant flatly intimated that due to drastic
price increases, it would be unable to execute the purchase order
at the contracted price. The defendant then presented a take-it-or-
leave-it offer: either accept delivery at increased prices or the
order would be closed, and the advance returned. This
communication, as cogently argued by the plaintiff, amounted to
a clear and flagrant breach and violation of its contractual
commitments. The very essence of the original contract was
negated by this unilateral demand for an altered price.
48. Faced with severe economic duress and immense pressure
from its own downstream client, the plaintiff was left with no
choice but to accept your proposal of refund of the advance
moneys (Plaintiff’s email dated 27.04.2022, Ex. PW1/I). As
pleaded, this acceptance was not a free and voluntary novation or
discharge of the original contract but a desperate measure
undertaken under compulsion to mitigate mounting losses.
Consequently, to fulfill its own pre-existing commitments to its
client, the plaintiff was forced to procure the necessary material
from an alternative supplier, M/s Redington (India) Ltd., at a
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 35 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
significantly enhanced price of Rs. 2,45,60,430/- (Ex. PW1/J &
Ex. PW1/K). This resulted in a direct and quantifiable difference
of Rs. 59,84,415/- compared to the defendant’s contracted price,
which the plaintiff now seeks to recover as damages.
Furthermore, the plaintiff claims interest on the substantial
advance amount that remained with the defendant for over six
months without any benefit to the plaintiff, along with damages
for losses suffered by its client due to delay and loss of business
opportunities from other prospective customers.
49. The above facts, meticulously pleaded and largely
corroborated by the documentary evidence placed on record,
including the undisputed Purchase Order, the series of emails
acknowledging delays and breaches, and the ultimate refusal to
perform at the agreed price, unequivocally demonstrate a clear
breach of contract by the defendant. A breach of contract,
coupled with resulting damages directly flowing from that
breach, fundamentally and undeniably constitutes a valid and
actionable cause of action. The defendant’s argument regarding
“frustration of contract” due to unforeseen circumstances like
price increases is not a contention that negates the existence of a
cause of action, but rather a defence that the defendant may put
forth to justify its non-performance. Whether this defence will
ultimately succeed is a matter for substantive adjudication on the
merits, but it does not, ex facie, obliterate the foundational facts
that give rise to the plaintiff’s legal right to file the present suit.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 36 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Accordingly, Issue (iii) is decided in favour of the plaintiff and
against the defendant.
Issue (iv): Whether the plaintiff is entitled for a decree of
recovery of an amount of Rs. 94,87,100/- in favour of plaintiff
and against the defendant? OPP
50. The burden of proving this issue lies squarely upon the
plaintiff. The plaintiff’s consolidated claim for Rs. 94,87,100/- is
meticulously itemized into four distinct components, each
requiring independent scrutiny and evidentiary corroboration:
a) Rs. 59,84,415/-: Representing the “difference in contracted
price between price offered by one M/s. Redington (India) Ltd.
and Defendant Company.”
b) Rs. 1,80,000/-: Claimed as “interest at the rate of 12% per
annum on the advance amount of Rs. 30,00,000/- paid by the
Plaintiff to the Defendant.”
c) Rs. 13,22,685/-: Sought as “damages on account of loss of
generation suffered by M/s Geeta Threads Pvt. Ltd. Barnala due
to delay in execution of the contract.”
d) Rs. 20,00,000/-: Demanded on account of “loss suffered by the
Plaintiff due to failed business opportunities.”
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 37 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
51. The present case is rooted in the defendant’s fundamental
breach of the Purchase Order dated 21.09.2021 (Ex. PW1/D),
which stipulated the supply of 864 KWp solar modules. As
elaborated in the comprehensive reasoning for Issue (iii), the
evidence overwhelmingly demonstrates that the defendant’s
failure to deliver the crucial material within the initially agreed
timeline (first week of December 2021), coupled with its
subsequent inability to meet even the rescheduled timelines
despite repeated assurances, and its ultimate recalcitrant refusal
to honor the contracted price, constituted a clear and unequivocal
breach of contract. The defendant’s own communication, an e-
mail dated 16.03.2022 (Ex. DW1/P2), stands as an unassailable
admission of its failure in meeting purchase order timelines and
rescheduled timeline, and being unsuccessful in previous
assurances. This admission, coming from the defendant itself,
directly substantiates the plaintiff’s claim of breach. Further,
DW-1, the defendant’s witness, conceded during cross-
examination that the material ordered was indeed not supplied
within the stipulated or even extended periods. He further
admitted that the defendant would only have supplied the
material if the plaintiff had agreed to an increased price.
Significantly, DW-1 also conceded that the price increase
occurred within the agreed period of supply and that the
Government of India’s Office Memorandum dated 09.03.2021
(Ex. DW1/P1), which notified custom duty increases effective
01.04.2022, was within the defendant’s knowledge. These
admissions by the defendant’s witness solidify the finding that the
defendant was in breach of its contractual obligations,
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 38 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
particularly in light of Section 37 of the Indian Contract Act,
1872, which mandates the performance of promises which is
reproduced hereunder:
“Section 37. Obligation of parties to contracts.
The parties to a contract must either perform, or offer to
perform, their respective promises, unless such performance
is dispensed with or excused under the provisions of this Act,
or of any other law.
Promises bind the representatives of the promisors in case of
the death of such promisors before performance, unless a
contrary intention appears from the contract.
Illustrations
(a) A promises to deliver goods to B on a certain day on
payment of Rs. 1,000. A dies before that day. A’s
representatives are bound to deliver the goods to B, and B is
bound to pay the Rs. 1,000 to A’s representatives.
(b) A promises to paint a picture for B by a certain day, at a
certain price. A dies before the day. The contract cannot be
enforced either by A’s representatives or by B.”
52. The plaintiff has sought recovery of Rs. 59,84,415/- as the
direct financial impact of the defendant’s breach. This amount
represents the proven additional cost incurred by the plaintiff to
procure the same material from an alternative supplier after the
defendant’s default. The original Purchase Order (Ex. PW1/D)
clearly specified the contract price with the defendant as Rs.
1,85,76,000/-. Following the defendant’s definitive refusal to
supply at this agreed price, the plaintiff was placed in a
predicament. Faced with its own contractual obligations to M/s
PV Tech. Engineering and M/s Geeta Threads Pvt. Ltd., and the
pressure to complete the project, the plaintiff was compelled to
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 39 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
enter into a new purchase arrangement. As evidenced by the
electronic purchase order dated 27.04.2022 (Ex. PW1/J) and the
subsequent invoices (Ex. PW1/K (colly)) issued by M/s
Redington (India) Ltd., the plaintiff procured the identical
quantity of solar modules for a total price of Rs. 2,45,60,430/-.
The arithmetical difference between the price paid to Redington
and the original contract price with the defendant is Rs.
2,45,60,430/- minus Rs. 1,85,76,000/-, which precisely amounts
to Rs. 59,84,430/-. The plaintiff’s claimed amount of Rs.
59,84,415/- is thus substantially supported by documented
evidence, with a minor negligible difference.
53. The entitlement to such damages is firmly enshrined in
Section 73 of the Indian Contract Act, 1872. This section
mandates that “When a contract has been broken, the party who
suffers by such breach is entitled to receive, from the party who
has broken the contract, compensation for any loss or damage
caused to him thereby, which naturally arose in the usual course
of things from such breach, or which the parties knew, when they
made the contract, to be likely to result from the breach of it.” In
commercial contracts involving the sale of goods, where a
default in delivery occurs and a readily available market exists
for identical goods, the standard measure of damages is indeed
the difference between the contract price and the market price on
the date of the breach. In the present case, the plaintiff’s urgent
procurement from M/s Redington (India) Ltd. at a higher rate
was a direct and foreseeable consequence of the defendant’s
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MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
breach. PW-2, Sh. Prateek Gupta, corroborated this necessity,
testifying that M/s Redington had readily available stock at that
time, which was crucial given the defendant’s continued process
of confirmation. This action by the plaintiff represents a
reasonable and necessary step to mitigate its losses, a duty often
imposed on a wronged party. The defendant’s plea of frustration
of contract, while a defence to the entire claim, does not negate
the actual, quantifiable financial loss demonstrably incurred by
the plaintiff due to its proven non-performance.
54. In factually similar scenario, the Hon’ble Supreme Court
in M/s Murlidhar Chiranjilal Vs. Harishchandra Dwarkadas &
Anr. (AIR 1962 SC 366), observed:
“The two principles on which damages in such cases are
calculated are well-settled. The first is that, as far as possible,
he who has proved a breach of a bargain to supply what he
contracted to get is to be placed, as far as money can do it, in as
good a situation as if the contract had been performed; but this
principle is qualified by a second, which imposes on a plaintiff
the duty of taking all reasonable step” to mitigate the loss
consequent on the breach, and debars him from claiming any
part of the damage which is due to his neglect to take such
steps: (British Westinghouse Electric and Manufacturing
Company Limited v. Underground Electric Railways Company
of London (1)). These two principles also follow from the law as
laid down in s. 73 read with the Explanation thereof If therefore
the contract was to be performed at Kanpur it was the
respondent’s duty to buy the goods in Kanpur and rail them to
Calcutta on the date of the breach and if it suffered any damage
thereby because of the rise in price on the date of the breach as
-compared to the contract price, it would be entitled to be
reimbursed for the loss. Even if the respondent did not actually
buy them in the market at Kanpur on the date of breach it would
be entitled to damages on proof of the rate for similar canvas
prevalent in Kanpur on the date of breach, if that rate was
above the contracted rate resulting in loss to it. Bat the
respondent did not make any attempt to prove the rate for
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MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
similar canvas prevalent in Kanpur on the date of breach.
Therefore it would obviously be not entitled to any damages at
all, for on this state of the evidence it could not be said that any
damage naturally arose in the usual course of things. But the
learned counsel for the respondent relies on that part of s. 73
which says that dam-ages may be measured by what the parties
knew when they made the contract to be likely to result from the
breach of it. It is contended that the contract clearly showed
that the goods were to be transported to and sold in Calcutta
and therefore it was the price in Calcutta which would have to
be taken into account in arriving at the measure of damages for
the parties knew when they made the contract that the goods
were to be sold in Calcutta. Reliance in this connection is
placed on (1) [1912] A.C. 673. 689.”
55. Therefore, the Court finds that the plaintiff has
convincingly proven its entitlement to recover the difference in
the contracted price. The amount of Rs. 59,84,415/- is found to
be duly substantiated by the documentary evidence and the
natural consequences of the defendant’s breach.
56. The plaintiff sought interest at a rate of 12% per annum on
the advance amount of Rs. 30,00,000/-, which remained with the
defendant from the dates of respective deposits until its refund on
31.05.2022. The record shows the following deposits: Rs.
5,00,000/- on 01.10.2021, Rs. 10,00,000/- on 28.10.2021, and Rs.
15,00,000/- on 10.01.2022, aggregating to Rs. 30,00,000/-. This
entire sum was refunded on 31.05.2022. During cross-
examination, DW-1 explicitly admitted that “no interest was
paid” by the defendant on the refunded Rs. 30,00,000/-.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 42 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
57. While the plaintiff is certainly entitled to compensation for
the wrongful retention of its funds, the rate of interest needs to be
determined judiciously. The award of interest in commercial
disputes is often guided by the principles enshrined in Section 34
of the Code of Civil Procedure, 1908, which empowers the Court
to award reasonable interest. While commercial transactions may
warrant a higher rate than personal loans, 12% per annum may be
considered excessive in the current commercial climate.
Considering the prevailing rates for commercial loans and the
nature of the advance payment, a rate of 6% per annum would
represent a fair and equitable compensation for the period the
funds were withheld. This rate adequately compensates the
plaintiff for the time value of money and the loss of its use,
without being punitive. The total pre-suit interest on the advance
amount, calculated at 6% per annum, amounts to around Rs.
90,000/- (approx.).
58. The plaintiff has sought Rs. 13,22,685/- as damages
purportedly suffered by M/s Geeta Threads Pvt. Ltd., Barnala, on
account of loss of generation due to the delay, which the plaintiff
states its client, M/s PV Tech. Engineering, Barnala, has
demanded from it. While PW-2, Sh. Prateek Gupta (from M/s PV
Tech. Engineering), testified that this amount was calculated
based on a specific clause in their purchase order with M/s Geeta
Threads Pvt. Ltd., it is a fundamental principle of proving
damages that such claims must be substantiated by concrete
evidence. In the present case, the plaintiff has failed to place any
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 43 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
documentary evidence on record to support this specific claim.
There is no formal demand letter from M/s Geeta Threads Pvt.
Ltd. or M/s PV Tech. Engineering specifically quantifying this
loss and demanding this precise amount from the plaintiff.
Furthermore, no copy of the specific contractual clause outlining
the calculation of such a penalty or loss of generation, or any
independent assessment report validating this figure, has been
exhibited. In the absence of any credible documentary evidence,
this claim remains unproven in a Court of law. Therefore, this
claim for Rs. 13,22,685/- is not awarded due to lack of evidence.
59. The plaintiff has also claimed a significant sum of Rs.
20,00,000/- for “loss suffered due to failed business
opportunities,” attributing this to “prospective customers shying
off from doing business” with the plaintiff due to its perceived
delay in meeting contractual timelines. This category of damages
falls under what is typically referred to as indirect or special
damages. For such damages to be recoverable, it is imperative
that they are shown to have been reasonably within the
contemplation of both parties at the time the contract was made,
as being the likely result of a breach. Beyond this, proving such
damages requires a high degree of specificity and substantial
evidence. The plaintiff, in the instant case, has provided no expert
report, no comparative financial statements, no details of specific
“shying off” customers, no concrete evidence of lost tenders or
projects, nor any objective methodology to justify how the figure
of Rs. 20,00,000/- has been arrived at. Such claims, without
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MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
robust evidentiary backing, tend to be speculative and
conjectural, which Courts generally do not entertain. Therefore,
this claim for Rs. 20,00,000/- is also not awarded in favour of the
plaintiff.
60. Based on the detailed analysis of the evidence presented
for each component of the plaintiff’s claim, the Court concludes
that the plaintiff has successfully proven its entitlement to two
specific heads of damages:
a) Difference in contracted price: Rs. 59,84,415/- (as established
through Ex. PW1/D, Ex. PW1/J, Ex. PW1/K, and the testimony
of PW-1 and PW-2).
b) Interest on advance amount: Rs. 90,000/- (calculated at a
reasonable rate of 6% per annum for the period the funds were
withheld).
61. The total amount that the plaintiff is legally entitled to
recover from the defendant is therefore the sum of these two
proven heads is Rs. 60,74,415/- (Rupees Sixty Lacs Seventy Four
Thousand Four Hundred Fifteen Only). Accordingly, Issue (iv) is
decided in favour of the plaintiff and partly against the defendant,
granting a decree of recovery for the proven and substantiated
amount of Rs. 60,74,415/-.
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 45 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Issue No. (v) Whether the plaintiff is entitled for interest on the
decreetal amount, if yes, than for which period and at what
rate? OPP
Issue No. (vi) Whether the plaintiff is also entitled for cost of
the suit? OPP
62. As regards the rate of interest claimed by the Plaintiff is
concerned, I am of the considered opinion that as per the
Judgment of Hon’ble Supreme Court in Central Bank of India
Vs. Ravindra AIR 2001, Supreme Court 3095, the grant of
pendente-lite and future interest is a subject matter of the
discretion of the Court and not to be governed by the agreement
between the parties. Accordingly in exercise of the discretionary
power of this Court, I have granted pendente-lite and future
interest at the rate of 6% p.a. to the Plaintiff because Section 34
of CPC, 1908 as well as the provisions of the Interest Act, 1978,
contemplate grant of interest at the rate of 6% per annum and
because in the past decade, the nationalized banks have also
granted interest at the rate of 5-6% per annum, on terms deposits.
63. Legal costs: Parties to bear their own costs.
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MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)
Relief
64. On the basis of above findings, the suit of the plaintiff is
hereby decreed in favour of the plaintiff, M/s Aryav Green
Energy Pvt. Ltd., and against the defendant, M/s Jakson
Engineers Ltd., for a sum of Rs. 60,74,415/- (Rupees Sixty Lacs
Seventy Four Thousand Four Hundred Fifteen Only). The
plaintiff is further awarded pendente lite and future interest at the
rate of 6% per annum on the decreed amount from the date of
filing of the suit until its realization. Parties to bear their own
costs. Decree sheet be prepared accordingly. File be consigned to
record room after due compliance. Digitally
NEELAM signed by
Announced & dictated SINGH NEELAM
in the open Court on SINGH
this 6th day of June, 2025 (NEELAM SINGH)
District Judge
Commercial Court-06
Tis Hazari Courts, Delhi
Previously posted as District
Judge (Commercial Court)-02
South-East District
Saket Courts, New Delhi
CS (COMM) 538/23 MS Aryav Green Energy Pvt Ltd Vs. Page 47 of 47
MS Jackson Engineers Limited (Through Its Director/ Secretary/ Principal Officer)