IN THE COURT OF SH. A.S.

YADAV ADJ, DELHI

CS NO. OF 2004

IN THE MATTER OF:

M/S Ess Cee Footwear Co. & Ors. … Plaintiff

Versus

M/s Bata India Ltd. … Defendant

AFFIDAVIT BY WAY OF EVIDENCE OF

SHRI SWARN KUMAR CHOPRA

I Swaran Kumar Chopra, aged about __ years, son of Shri

Attar Chand Chopra, R/o D-190, Ashok Vihar Phase-I, Delhi, do
hereby solemnly affirm and declare as under:-

(i) I say that I am Plaintiff No.3 in the above mentioned matter

(ii) I say that M/s Ess Cee Footwear Co., is a partnership firm

which is duly registered with the Registrar of Firms, Delhi

under Section 58(1) of the Indian Partnership Act., 1932,

Plaintiff Nos. 2 and 3 are its partners. The Registered

Partnership Firm is a regular Sales Tax payee. The true copy

of acknowledgement of the Registration of the firm has been

fled with the plaint and exhibited as Exhibit-PW1/A.

(iii) I say that the M/s Bata India Ltd. is a company incorporated

under the Indian Companies Act and has its registered office
 at 30, Shakespeare Sarani, Calcutta and its sales office at 6-

A, Surendra Nath Banerjee Road, Calcutta from where all

dealings are made through the contract Department. They are

engaged in the business of manufacture and sale of footwear

and carry on business in Delhi through its regional/branch

office and shops in Delhi.

(iv) I say that in the year 1957 M/s. ESS Cee Footwear Company

of which I and Plaintiff No.3 are partners set up a unit for the

manufacture of footwear. The footwear manufactured by the

M/s Ess Cee Footwear Company was supplied in bulk to

leading concerns who used to sell the same after putting their

own brand names on the footwear.

(v) I say that sometime in the year 1979, representative of the

Defendant, Mr. P.K. Bhanot (Quality Checker at that time)

came to the factory of M/s Ess Cee Footwear Company. He

was very much impressed with designing and quality of the

products manufactured by the Plaintiff-Company and wrote to

his Contract Manager, Mr. S.K. Bhadra. Mr. Bhadra also

came to the factory of M/s Ess Cee Footwear Company.

These representatives of M/s Bata India Ltd., were very much

impressed by the quality of the footwear’s manufactured by

M/s Ess Cee Footwear Company and offered to give a running

contract for supply of footwear to M/s Ess Cee Footwear

 Company. The letter dated 3/1/1979 is exhibited as

Exhibit-PW1/B.

(vi) I say that thereafter certain negotiations took lace between the

parties and the unit of M/s Ess Cee Footwear Company was

again inspected by the representatives of M/s Bata India Ltd.,

Ultimately, it was agreed to between the parties that M/s Ess

Cee Footwear Company will supply footwear on a regular

contract basis to M/s Bata India Ltd., as per its specifications.

Accordingly, vide letter dated 10th April, 1979, M/s. Bata India

Ltd. informed M/s. Ess Cee Footwear Company that it has

approved M/s Ess Cee Footwear Company as one of the

regular suppliers and that EDP code No.76 and party Code

No. SC had been allotted to them. Alongwitht he said letter

terms and conditions of the contract between the parties was

also enclosed and M/s Ess Cee Footwear was requested to

convey its acceptance of the same. The letter dated

10.4.1979 is exhibited as Exhibit-PW1/C.

(vii) I say that vide letter dated 15th April, 1979/16.4.79 M/s Ess

Cee Footwear Company conveyed its acceptance of the said

terms and conditions laid down by M/s Bata India Ltd. I say

that this contract between the parties shows that M/s Bata

India Ltd. was aware about the existence of M/s Ess Cee

Footwear Company a manufacturing Partnership firm and

copy of the Partnership Deed was also handed over to the

 representative of M/s Bata India Limited. The letter dated

15.4.1979/16.4.1979 is exhibited as Exhibit-PW1/D.

(viii) I say that as per the terms and conditions agreed to between

the parties M/s Ess Cee Footwear Company had to supply

footwear to M/s Bata India Ltd. as per the requirements and

specifications of M/s Bata India Ltd. who had to make the

payment within 7 weeks of the receipt of the bills (Clause 18 of

the terms and conditions laid down by Bata India Ltd. in their

contract and accepted by M/s Ess Cee Footwear). I say that

vide letter dated 24th April, 1979, M/s Bata India Ltd. changed

the period of making payment to 5 weeks from the receipt of

the bills. The letter dated 24.4.79 is exhibited as

Exhibit-PW1/E.

(ix) I say that as per the terms and conditions agreed to in

between them M/s. Ess Cee Footwear Company and M/s Bata

India Ltd. had consistent dealings during the period 1979 to

July, 1989 with regard to various orders placed by M/s Bata

India Ltd. with M/s Ess Cee Footwear Company; completed

and delivered by M/s Ess Cee Footwear Company to the

complete satisfaction of M/s Bata India Ltd. All the supplies

made in terms of the orders placed by Bata were dispatched

after they were checked and approved by Bata’s

representatives as regards quality, colour, size, assortment

and other specifications. All the bills relating to supplies made

 by M/s. Ess Cee Footwear Company to M/s Bata India Limited

were signed by the Quality Checker after his full satisfaction

before despatching of the order, that the colour, size,

assortment and production is as per order. Copies of the Bills

have been filed in the Court. A letter dated 3.10.83 regarding

aforesaid is exhibited as Exhibit-PW1/G and the reply thereto

is exhibited as Exhibit-PW1/H.

(x) I say that in view of the excellent quality of the footwear

manufactured by M/s Ess Cee Footwear company a number

of award were given to them by Bata. The award is given in a

span of approximately tow to four years for excellent quality.

The letter dated 20.1.89, 29.12.1988 and 25.1.1989 are

exhibited as Exhibit PW1/I,J,K. and the copy of the progress

Awards are exhibited as Exhibit-PW1/Q and R.

(xi) I say that as per the mutual understanding between the parties

M/s. Ess Cee Footwear Company used to issue bills from time

to time to Bata in respect of the supplies made. M/s Bata India

Ltd. used to make payments to Syndicate Bank G.B. Road,

Delhi, as M/s. Ess Cee Footwear Company had taken a loan

from the said bank and had authorized the bank to received

payments on its behalf. The Power of Attorney was given to

the Bank for receiving of the payment duly acknowledged by

M/s Bata India Limited after the execution of the contract. The

power of attorney dated 29.5.1986 is exhibited as

 Exhibit-PW1/S. I say suddently vide letter dated 5.1.1989

the defendant has stopped the production of the Plaintiff. The

letter dated 5.1.89 is exhibited Exhibit-PW1/F.

(xii) I say that M/s Ess Cee Footwear Company used to keep a

regular open and running account of M/s Bata India Ltd. in its

books of accounts which are regularly maintained in the

regular course of business. The statement of account of M/s.

Bata India Ltd. as in the book of the M/s Ess Cee Footwear

Company has been enclosed with the present suit. The

statement of account and all other documents were delivered

to M/s. Bata India Limited at the time of filing of the suit.

I further say that on 31.3.1990, the outstanding balance in our

books payable by M/s Bata India Ltd. was 5 lacs 86 thousand

(approx.) in the running account. Therefore, the suit filed in 1982 is

within limitation. I say that the letter dated 18.7.1989 written by M/s

Bata India Ltd. to M/s. Ess Cee Footwear Company showing the

credit of Rs.11,000/- (approx) in M/s Ess Cee Footwear Company

account, it shows that transactions between the parties were

continuing even in 1989. Moreover, a Debit Note for Rs.6,700/-

(approx.) was debited in the month of January 1990 in the account

of M/s Bata India Limited by Ess Cee Footwear Company. This Debit

Note was raised against the sales tax demand against which Bata

India Limited did not issue the ‘C’ Form to M/s Ess Cee Footwear

Company.
(xiii) I say that in the said open and running account a sum of
Rs.11,13,333/- is outstanding against M/s Bata India Ltd. on
15th July, 1992 and this amount is payable by M/s Bata India
Ltd. the Defendant to M/s Ess Cee Footwear Company in
respect of footwear supplied. This amount includes the
interest on Rs.5,86,000/- (approx.) at bank rate of interest at
quarterly rest. The relevant letters and statement of account
are exhibited as Exhibit-PW1/L,M,N,O,P,T,U,V,W,X

(xiv) I say that M/s Bata India Ltd. has failed to pay the said amount

despite repeated demands. Notice dated 23.12.1991 was

sent to M/s Bata India Ltd.

(xv) I say that M/s Bata India Ltd. is liable to pay a sum of

Rs.11,13,333/- to M/s Ess Cee Footwear Co. M/s Bata India

Ltd. is also liable to pay pendentelite and future interest on the

said amount @ 22% p.a. which is the bank lending rate and

this interest M/s Ess Cee Footwear Co. has been paying to

their banker.

I further say that the contract between the parties is still alive

due to the very fact that the said contract has not been

cancelled in accordance with Clause 20 of the terms and

conditions between the parties communicated to M/s. Ess Cee

Footwear Co. vide letter dated 10.4.1979 from M/s Bata India

Ltd., Also the stamps, screens, moulds, etc. belonging to M/s

Bata India Ltd. is still in the possession of M/s Ess Cee

Footwear Co. as contract clause says that one month’s notice

is required for termination of contract from either side.

I say that a letter dated 5.1.1989 was written by M/s Bata India

Ltd. to M/s Ess Cee Footwear Co. to stop production till further

instructions. After this, about 10 days later, verbal discussions

were held between the parties and the officer of M/s Bata

India Limited who wrote letter to M/s Ess Cee Footwear

Company to stop production till further instructions giving

specification of lables to be printed for the year 1989 which

were pasted on the box of footwear and other letters were also

issued by Bata India Limited to make more samples as the

Fashion Show will be held in the month of February, 1989. All

these lables and letters specifications have been filed in the

Court. Letter dated 26.3.1989 shows that during the verbal

discussions the parties had agreed upon re-starting of the

production of M/s Ess Cee Footwear Co. and supply therefore,

the said letter has been admitted by M/s Bata India Ltd.

I say that the claim made by M/s Bata India Ltd. in its written

statement of Rs.1 lac (approximately) was never conveyed to

M/s Ess Cee Footwear Co. before and has been raised here

for the first time. Most importantly M/s Bata India Ltd.

themselves maintain that no supplies were made by M/s Ess

Cee Footwear Co. for the period, i.e., year 1989 with respect

to which this claim is raised.

(xvi) I say that the cause of action for filing the suit first arose in

favour of M/s Ess Cee Footwear Co. when bills were raised by

them and on account the payments were made by M/s Bata

India Ltd. and lastly when on 18.7.1989 M/s Bata India Ltd.

made last payment and sent a credit note to M/s Ess Cee

Footwear Co. for a sum of Rs.11,000/- (approx) and a Debit

Note for Rs.6,700/- was raised by M/s Ess Cee Footwear

Company in the month of January 1990.

I further say that a notice dated 23.12.91 has been sent to the

Defendant. It is exhibited as Exhibit-PW1/Y.

I say that the statement of accounts of M/s Ess Cee Footwear

Co. shows a balance of Rs.5,86,000/- at the closing of

31.3.1990 payable by M/s. Bata India Ltd. Interest has been

charged at 22% p.a. from July, 1989 to July, 1992 and

pendentelite interest.

I say that M/s Bata India Ltd. despite specifric orders from

November 1998 onwards, the court from November, have still

not produced the accounts of the relevant peirod from January

1984 to March 1990 respect to M/s Ess Cee Footwear Co.

(xvii) I say that the contract between the parties was entered into at

Delhi and supplies were also made at Delhi.

(xviii) I say that for the purpose of jurisdiction and court fee the suit

is valued at Rs.11,13,333/- on which a court fee of Rs.13,324/-

is paid.

DEPONENT
VERIFICATION

Verified at New Delhi on January, 2005, that the contents

of my above Affidavit are true to my knowledge and believe. Nothing

false has been stated therein or material concealed therefrom.

DEPONENT
 IN THE COURT OF SH. A.S. YADAV ADJ, DELHI

CS NO. OF 2004

IN THE MATTER OF:

M/S Ess Cee Footwear Co. & Ors. … Plaintiff

Versus

M/s Bata India Ltd. … Defendant

AFFIDAVIT BY WAY OF EVIDENCE OF

SHRI RAMESH KUMAR CHOPRA

I Ramesh Kumar Chopra, aged about __ years, son of Shri

Attar Chand Chopra, R/o D-190, Ashok Vihar Phase-I, Delhi, do
hereby solemnly affirm and declare as under:-

(i) I say that I am Plaintiff No.3 in the above mentioned matter

(ii) I say that M/s Ess Cee Footwear Co., is a partnership firm

which is duly registered with the Registrar of Firms, Delhi

under Section 58(1) of the Indian Partnership Act., 1932,

Plaintiff Nos. 2 and 3 are its partners. The Registered

Partnership Firm is a regular Sales Tax payee. The true copy

of acknowledgement of the Registration of the firm has been

fled with the plaint and exhibited as Exhibit-PW1/A.

(iii) I say that the M/s Bata India Ltd. is a company incorporated

under the Indian Companies Act and has its registered office
 at 30, Shakespeare Sarani, Calcutta and its sales office at 6-

A, Surendra Nath Banerjee Road, Calcutta from where all

dealings are made through the contract Department. They are

engaged in the business of manufacture and sale of footwear

and carry on business in Delhi through its regional/branch

office and shops in Delhi.

(iv) I say that in the year 1957 M/s. ESS Cee Footwear Company

of which I and Plaintiff No.3 are partners set up a unit for the

manufacture of footwear. The footwear manufactured by the

M/s Ess Cee Footwear Company was supplied in bulk to

leading concerns who used to sell the same after putting their

own brand names on the footwear.

(v) I say that sometime in the year 1979, representative of the

Defendant, Mr. P.K. Bhanot (Quality Checker at that time)

came to the factory of M/s Ess Cee Footwear Company. He

was very much impressed with designing and quality of the

products manufactured by the Plaintiff-Company and wrote to

his Contract Manager, Mr. S.K. Bhadra. Mr. Bhadra also

came to the factory of M/s Ess Cee Footwear Company.

These representatives of M/s Bata India Ltd., were very much

impressed by the quality of the footwear’s manufactured by

M/s Ess Cee Footwear Company and offered to give a running

contract for supply of footwear to M/s Ess Cee Footwear

 Company. The letter dated 3/1/1979 is exhibited as

Exhibit-PW1/B.

(vi) I say that thereafter certain negotiations took lace between the

parties and the unit of M/s Ess Cee Footwear Company was

again inspected by the representatives of M/s Bata India Ltd.,

Ultimately, it was agreed to between the parties that M/s Ess

Cee Footwear Company will supply footwear on a regular

contract basis to M/s Bata India Ltd., as per its specifications.

Accordingly, vide letter dated 10th April, 1979, M/s. Bata India

Ltd. informed M/s. Ess Cee Footwear Company that it has

approved M/s Ess Cee Footwear Company as one of the

regular suppliers and that EDP code No.76 and party Code

No. SC had been allotted to them. Alongwitht he said letter

terms and conditions of the contract between the parties was

also enclosed and M/s Ess Cee Footwear was requested to

convey its acceptance of the same. The letter dated

10.4.1979 is exhibited as Exhibit-PW1/C.

(vii) I say that vide letter dated 15th April, 1979/16.4.79 M/s Ess

Cee Footwear Company conveyed its acceptance of the said

terms and conditions laid down by M/s Bata India Ltd. I say

that this contract between the parties shows that M/s Bata

India Ltd. was aware about the existence of M/s Ess Cee

Footwear Company a manufacturing Partnership firm and

copy of the Partnership Deed was also handed over to the

 representative of M/s Bata India Limited. The letter dated

15.4.1979/16.4.1979 is exhibited as Exhibit-PW1/D.

(ix) I say that as per the terms and conditions agreed to between

the parties M/s Ess Cee Footwear Company had to supply

footwear to M/s Bata India Ltd. as per the requirements and

specifications of M/s Bata India Ltd. who had to make the

payment within 7 weeks of the receipt of the bills (Clause 18 of

the terms and conditions laid down by Bata India Ltd. in their

contract and accepted by M/s Ess Cee Footwear). I say that

vide letter dated 24th April, 1979, M/s Bata India Ltd. changed

the period of making payment to 5 weeks from the receipt of

the bills. The letter dated 24.4.79 is exhibited as

Exhibit-PW1/E.

(ix) I say that as per the terms and conditions agreed to in

between them M/s. Ess Cee Footwear Company and M/s Bata

India Ltd. had consistent dealings during the period 1979 to

July, 1989 with regard to various orders placed by M/s Bata

India Ltd. with M/s Ess Cee Footwear Company; completed

and delivered by M/s Ess Cee Footwear Company to the

complete satisfaction of M/s Bata India Ltd. All the supplies

made in terms of the orders placed by Bata were dispatched

after they were checked and approved by Bata’s

representatives as regards quality, colour, size, assortment

and other specifications. All the bills relating to supplies made

 by M/s. Ess Cee Footwear Company to M/s Bata India Limited

were signed by the Quality Checker after his full satisfaction

before despatching of the order, that the colour, size,

assortment and production is as per order. Copies of the Bills

have been filed in the Court. A letter dated 3.10.83 regarding

aforesaid is exhibited as Exhibit-PW1/G and the reply thereto

is exhibited as Exhibit-PW1/H.

(x) I say that in view of the excellent quality of the footwear

manufactured by M/s Ess Cee Footwear company a number

of award were given to them by Bata. The award is given in a

span of approximately tow to four years for excellent quality.

The letter dated 20.1.89, 29.12.1988 and 25.1.1989 are

exhibited as Exhibit PW1/I,J,K. and the copy of the progress

Awards are exhibited as Exhibit-PW1/Q and R.

(xi) I say that as per the mutual understanding between the parties

M/s. Ess Cee Footwear Company used to issue bills from time

to time to Bata in respect of the supplies made. M/s Bata India

Ltd. used to make payments to Syndicate Bank G.B. Road,

Delhi, as M/s. Ess Cee Footwear Company had taken a loan

from the said bank and had authorized the bank to received

payments on its behalf. The Power of Attorney was given to

the Bank for receiving of the payment duly acknowledged by

M/s Bata India Limited after the execution of the contract. The

power of attorney dated 29.5.1986 is exhibited as

 Exhibit-PW1/S. I say suddently vide letter dated 5.1.1989

the defendant has stopped the production of the Plaintiff. The

letter dated 5.1.89 is exhibited Exhibit-PW1/F.

(xii) I say that M/s Ess Cee Footwear Company used to keep a

regular open and running account of M/s Bata India Ltd. in its

books of accounts which are regularly maintained in the

regular course of business. The statement of account of M/s.

Bata India Ltd. as in the book of the M/s Ess Cee Footwear

Company has been enclosed with the present suit. The

statement of account and all other documents were delivered

to M/s. Bata India Limited at the time of filing of the suit.

I further say that on 31.3.1990, the outstanding balance in our

books payable by M/s Bata India Ltd. was 5 lacs 86 thousand

(approx.) in the running account. Therefore, the suit filed in 1982 is

within limitation. I say that the letter dated 18.7.1989 written by M/s

Bata India Ltd. to M/s. Ess Cee Footwear Company showing the

credit of Rs.11,000/- (approx) in M/s Ess Cee Footwear Company

account, it shows that transactions between the parties were

continuing even in 1989. Moreover, a Debit Note for Rs.6,700/-

(approx.) was debited in the month of January 1990 in the account

of M/s Bata India Limited by Ess Cee Footwear Company. This Debit

Note was raised against the sales tax demand against which Bata

India Limited did not issue the ‘C’ Form to M/s Ess Cee Footwear

Company.
(xiii) I say that in the said open and running account a sum of

Rs.11,13,333/- is outstanding against M/s Bata India Ltd. on

15th July, 1992 and this amount is payable by M/s Bata India

Ltd. the Defendant to M/s Ess Cee Footwear Company in

respect of footwear supplied. This amount includes the

interest on Rs.5,86,000/- (approx.) at bank rate of interest at

quarterly rest. The relevant letters and statement of account

are exhibited as Exhibit-PW1/L,M,N,O,P,T,U,V,W,X

(xiv) I say that M/s Bata India Ltd. has failed to pay the said amount

despite repeated demands. Notice dated 23.12.1991 was

sent to M/s Bata India Ltd.

(xv) I say that M/s Bata India Ltd. is liable to pay a sum of

Rs.11,13,333/- to M/s Ess Cee Footwear Co. M/s Bata India

Ltd. is also liable to pay pendentelite and future interest on the

said amount @ 22% p.a. which is the bank lending rate and

this interest M/s Ess Cee Footwear Co. has been paying to

their banker.

I further say that the contract between the parties is still alive

due to the very fact that the said contract has not been

cancelled in accordance with Clause 20 of the terms and

conditions between the parties communicated to M/s. Ess Cee

Footwear Co. vide letter dated 10.4.1979 from M/s Bata India

Ltd., Also the stamps, screens, moulds, etc. belonging to M/s

Bata India Ltd. is still in the possession of M/s Ess Cee

Footwear Co. as contract clause says that one month’s notice

is required for termination of contract from either side.

I say that a letter dated 5.1.1989 was written by M/s Bata India

Ltd. to M/s Ess Cee Footwear Co. to stop production till further

instructions. After this, about 10 days later, verbal discussions

were held between the parties and the officer of M/s Bata

India Limited who wrote letter to M/s Ess Cee Footwear

Company to stop production till further instructions giving

specification of lables to be printed for the year 1989 which

were pasted on the box of footwear and other letters were also

issued by Bata India Limited to make more samples as the

Fashion Show will be held in the month of February, 1989. All

these lables and letters specifications have been filed in the

Court. Letter dated 26.3.1989 shows that during the verbal

discussions the parties had agreed upon re-starting of the

production of M/s Ess Cee Footwear Co. and supply therefore,

the said letter has been admitted by M/s Bata India Ltd.

I say that the claim made by M/s Bata India Ltd. in its written

statement of Rs.1 lac (approximately) was never conveyed to

M/s Ess Cee Footwear Co. before and has been raised here

for the first time. Most importantly M/s Bata India Ltd.

themselves maintain that no supplies were made by M/s Ess

 Cee Footwear Co. for the period, i.e., year 1989 with respect

to which this claim is raised.

(xvi) I say that the cause of action for filing the suit first arose in

favour of M/s Ess Cee Footwear Co. when bills were raised by

them and on account the payments were made by M/s Bata

India Ltd. and lastly when on 18.7.1989 M/s Bata India Ltd.

made last payment and sent a credit note to M/s Ess Cee

Footwear Co. for a sum of Rs.11,000/- (approx) and a Debit

Note for Rs.6,700/- was raised by M/s Ess Cee Footwear

Company in the month of January 1990.

I further say that a notice dated 23.12.91 has been sent to the

Defendant. It is exhibited as Exhibit-PW1/Y.

I say that the statement of accounts of M/s Ess Cee Footwear

Co. shows a balance of Rs.5,86,000/- at the closing of

31.3.1990 payable by M/s. Bata India Ltd. Interest has been

charged at 22% p.a. from July, 1989 to July, 1992 and

pendentelite interest.

I say that M/s Bata India Ltd. despite specifric orders from

November 1998 onwards, the court from November, have still

not produced the accounts of the relevant peirod from January

1984 to March 1990 respect to M/s Ess Cee Footwear Co.

(xvii) I say that the contract between the parties was entered into at

Delhi and supplies were also made at Delhi.

(xviii) I say that for the purpose of jurisdiction and court fee the suit

is valued at Rs.11,13,333/- on which a court fee of Rs.13,324/-

is paid.

DEPONENT
VERIFICATION

Verified at New Delhi on January, 2005, that the contents

of my above Affidavit are true to my knowledge and believe. Nothing

false has been stated therein or material concealed therefrom.

DEPONENT