IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 04TH DAY OF SEPTEMBER, 2025 PRESENT THE HON'BLE MRS. JUSTICE ANU SIVARAMAN AND THE HON'BLE DR. JUSTICE K.MANMADHA RAO COMMERCIAL APPEAL NO.177 OF 2024 C/W. COMMERCIAL APPEAL NO.198 OF 2024 IN COMAP NO.177 OF 2024 BETWEEN: PEARSON INDIA EDUCATION SERVICES PRIVATE LIMITED FORMERLY, PEARSON EDUCATION SERVICES PRIVATE LIMITED CIN: U72900KA2000PTC026506 AT No.11, A WING, GROUND FLOOR DIVYASHREE CHAMBERS O SHAUGHNESSY ROAD BENGALURU-560 025 REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE MR. CHENGAPPA KUNDYOLANDA UTHAPPA ...APPELLANT (BY SRI. C.K. NANDAKUMAR, SENIOR COUNSEL A/W. SRI. SUJAYEENDRA SRIDHAR, ADVOCATE) AND: SRI. AJAY BHANDARI S/O K.V. BHANDARI AGED ABOUT 58 YEARS RESIDING AT H-4, MAIN MARKET RAJOURI GARDEN NEW DELHI-110 027 …RESPONDENT - 2 (BY SRI. SHRISHAIL S. NAVALGUND, ADVOCATE FOR CAVEATOR/RESPONDENT) THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1-A) OF THE COMMERCIAL COURTS ACT, 2015 R/W ORDER XLI OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DATED 22.02.2024 PASSED BY THE LXXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-85) (COMMERCIAL COURT), BENGALURU IN COM.O.S.No.603/2021 IN COMAP NO 198 OF 2024: BETWEEN: AJAY BHANDARI AGED ABOUT 61 YEARS S/O K.V. BHANDARI RESIDING AT H-4 MAIN MARKET RAJOURI GARDEN NEW DELHI-110 027 ...APPELLANT (BY SRI. SHRISHAIL SHIVABASAPPA NAVALGUND, ADVOCATE) AND: PEARSON INDIA EDUCATION SERVICES PRIVATE LIMITED FORMERLY, PEARSON EDUCATION SERVICES PRIVATE LIMITED CIN: U72900KA200PTC026506 No.11, A WING GROUND FLOOR DIVYASHREE CHAMBERS O SHAUGHANESSY ROAD BENGALURU-560 025 …RESPONDENT (BY SRI. C.K. NANDAKUMAR, SENIOR COUNSEL A/W. SRI. SUJAYEENDRA SRIDHAR, ADVOCATE) - 3 THIS COMMERCIAL APPEAL IS FILED UNDER SECTION 13(1-A) OF THE COMMERCIAL COURTS ACT, 2015 R/W ORDER XLI OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE DATED 22.02.2024 PASSED BY THE LXXXIV ADDL. CITY CIVIL AND SESSIONS JUDGE (CCH-85) (COMMERCIAL COURT), BENGALURU IN COM.O.S.No.603/2021 TO THE EXTENT OF PARTIAL REJECTION OF ISSUES No.1 TO 3 AND 11 AND CONSEQUENTLY ALLOW THE CLAIM OF THE APPELLANT IN FULL, AS PRAYED IN THE PLAINT IN COM. O.S. No.603/2021, INCLUDING ON ISSUES No.1 TO 3 AND 11, THAT IS, (i). HOLD THAT THE DEFENDANT IS LIABLE TO PAY A SUM OF RS.76,64,048/- FULLY; AS OPPOSED TO ONLY RS.42,62,048/- GRANTED AS PER THE IMPUGNED JUDGEMENT AND DECREE AND ETC. THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 25.06.2025 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE DR. JUSTICE K.MANMADHA RAO CAV JUDGMENT (PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN) Commercial Appeal No.177/2024 and Commercial Appeal No.198/2024 are filed by the defendant and plaintiff, respectively, challenging the Judgment and Decree dated 22.02.2024 passed by the LXXXIV Additional City Civil and Sessions Judge (CCH-85), Bengaluru ('Commercial Court' for short) in Commercial O.S.No.603/2021. - 4 2. We have heard Shri. C.K. Nandakumar, learned Senior Counsel as instructed by Shri. Sujayeendra Sridhar, learned Counsel appearing for the defendant and Shri. Shrishail S. Navalgund, learned counsel appearing for the plaintiff. 3. For the sake of convenience, the parties are referred to as per their ranks before the Commercial Court. 4. The plaint averments were as follows:- The plaintiff, engaged in marketing services in relation to technological solutions used in the education sector and the defendant - Pearson India Education Services Private Limited ('Company' for short), is a company incorporated under the Companies Act, 2013, engaged in developing and providing technological solutions and services for schools and educational institutions, entered into Channel Partner Agreements dated 29.08.2011, 01.03.2012, 26.03.2013 and Consultancy Agreement dated 07.11.2013. As per the terms of the agreement, the plaintiff was responsible for marketing and promoting the Company’s products and was entitled to - 5 receive 6% of the total revenue exclusive of taxes generated from such promoted products. The Company was required to make payment on a pro-rata basis within 10 days of the plaintiff raising an invoice, after receiving payment from the end customers. The plaintiff secured Work Order 1 for 100 classrooms on 28.09.2011, Work Order 2 for 334 classrooms on 24.06.2012 and Work Order 3 for 600 classrooms on 26.03.2013 for the Company. In order to finalize Work Order 3, the plaintiff executed the agreement and forwarded it to the Company on the same day via email. However, the Company neither returned the counter-signed copy nor formally acknowledged the agreement and continued to evade the plaintiff until November 2013 and on 07.11.2013 issued an agreement which was a renewal and continuation of the earlier agreements. The unpaid dues claimed by the plaintiff arise from commissions for procuring three work orders from Kalgidhar Trust (Akal Academy) on behalf of the defendant. The value of Order 1 is Rs.2,10,00,000/- commission at 6% amounts - 6 to Rs.11,59,200/- payable in 60 equal monthly instalments of Rs.19,320/-. The value of Order 2 is Rs.6,37,74,000/-, commission at 6% amounts to Rs.35,20,324/- payable in 60 equal monthly instalments of Rs.58,672/-. The value of Order 3 is Rs.11,34,00,000/- and the defendant owes a sum of Rs.1,13,400/- per month for 60 months commencing from April 2013. The plaintiff initially raised certain invoices for a higher amount in order to cover two months pending payments. The defendant initially made part payments of commission to the plaintiff against the first two orders. However, the balance commission relating to Orders 1, 2 as well as the entire commission due under Order 3 remain unpaid. As on 31.10.2020, the defendant is liable to pay the plaintiff the principal sum of Rs.76,64,048/- plus interest of Rs.62,86,037/- amounting to total due of Rs.1,39,50,085/-. This comprises of Rs.66,032/- in connection with Order 1, Rs.13,81,692/- in connection with Order 2 and Rs.1,25,02,361/- in connection with Order 3. - 7 5. On these pleadings, the suit was instituted by the plaintiff seeking the payment of principal sum of Rs.76,64,048/- and Rs.62,86,037/- as accrued interest on the amounts due till initiation of proceedings from the defendant. 6. The defendant appeared through counsel and filed its written statement contending that it has already paid all dues legitimately payable under the agreements. The plaintiff's claim of outstanding dues is frivolous, baseless, malafide, intended to harass and aimed at unjust enrichment at the cost of defendant. The defendant denied the existence, validity or enforceability of the alleged agreement dated 26.03.2013, asserting it was never executed and cannot bind the defendant. All dues were cleared in time, yet the plaintiff without basis, issued a legal notice dated 12.09.2015. The defendant had issued a reply dated 04.12.2015 clarifying that the defendant does not owe any amounts to the plaintiff. Under Clause 5 of all the three agreements, payments were contingent on collection from clients to whom the - 8 plaintiff marketed the defendant's products on a pro rata basis. However, due to the plaintiff's lackadaisical and non- proactive approach towards collection of the said monies substantial dues have accrued in favour of the defendant. The plaintiff issued demand notices dated 22.03.2017 and 08.06.2017 under Section 8 of the Insolvency and Bankruptcy Code, 2016 ('IBC' for short) reiterating the claims. The defendant in its reply dated 20.06.2017, reaffirmed the objection raised in its reply on 04.12.2015 and alleged deliberate suppression of material facts by the plaintiff. Despite the defendant's responses informing completion of all payable dues, the plaintiff filed a petition under Section 9 of IBC before the National Company Law Tribunal ('NCLT' for short) to initiate a Corporate Insolvency Resolution Process ('CIRP' for short) on 02.11.2017. The NCLT by order dated 09.10.2018, dismissed the petition holding that issuance of a legal notice prior to initiating CIRP indicates the existence of a pre-existing dispute, reserving - 9 the liberty to pursue other legal remedies available under law. Subsequent to the order of the NCLT, the plaintiff issued a legal notice on 13.11.2019 to which the defendant replied on 04.12.2019 reiterating earlier objections. Despite this, the plaintiff filed a suit claiming Rs.76,64,048/- as principal and Rs.62,86,037/- as interest. The claims made by the plaintiff pertain to alleged invoices of the year 2013 and onwards. It was contended that the claims were barred by estoppel and res judicata and hopelessly time barred since the alleged default arose on 12.09.2015 with limitation expiring on 11.09.2018, that is, three years from the date of accrual of the right to sue which was on 12.09.2015. Moreover, having issued a legal notice on 12.09.2015 and having not taken any action on the claims made in the said legal notice, the plaintiff is estopped from making any claims against the defendant in the suit. 7. Based on the pleadings of the parties, the Commercial Court framed the following issues:- - 10 “1. Whether the plaintiff proves that the defendant is liable to pay sum of Rs.76,64,048/-? 2. Whether the plaintiff proves that the defendant is liable to pay sum of Rs.62,86,034/- as accrued interest till the initiation of these proceedings calculated on the principal amount? 3. Whether the plaintiff proves that the defendant is liable to pay the pendent elite interest and future interest at the rate of 18% per annum till realization? 4. Whether the defendant proves suits suffers from substantive non-compliance with the prescribed procedure on the manner of disclosure of documents, as has been mandated by Order XI of the schedule to the Commercial Courts Act, 2015? 5. Whether the defendant prove that agreement dated 26.03.2013 neither exists nor holding any legal enforceability? 6. Whether the defendant proves that defendant has already disbursed monies towards all the pending dues to the Plaintiff? 7. Whether the suit is barred by limitation? 8. Whether the defendant proves that the claim of the plaintiff with regard to referred invoices pertaining to order 1, 2 & 3 or a complete fabrication, having no basis in actuality?” - 11 9. Whether the defendant proves that the defendant has already cleared all pending dues owed to the plaintiff under the Agreement executed between the parties? 8. Ajay Bhandari, the plaintiff, deposed as PW.1 and Exs.P1 to P83 were marked and the authorized representative of the defendant Company deposed as DW.1 and Exs.D1 to D9 were marked. 9. The Commercial Court, after considering the facts of the pleadings and the evidence on record, held that the only disputed transaction is Ex.P6 i.e., Work Order 3. It was found that DW.1 in his cross-examination had admitted the existence of Work Order 3 from Akal Academy for 600 classrooms and the relevant email had also been produced. Issues No.1 to 3 were answered in the affirmative. However, as the plaintiff failed to produce proof that the Company had received the entire payment from the end customers, and that considering Work Order 3 involved a huge consignment, the Commercial Court reduced the commission to 3% and further held that the plaintiff was not entitled to interest as - 12 the transactions between the parties were not purely commercial in nature. 10. The Commercial Court held issue No.5 in the negative as the Company failed to prove this issue, issues No.6, 8 and 9 were also held in the negative as DW.1 failed to prove clearance of the pending dues and failed to produce bank statements to establish that the Company had reimbursed the entire amount. Issue No.7 was held in the negative, holding that the plaint was not barred by limitation as DW.1 admitted that payments under all three agreements were structured over 60 EMIs. 11. The learned senior counsel appearing for the defendant-Company contended that the plaintiff’s suit filed on 17.09.2021 was barred by limitation. Even if the plaint contentions are accepted, the last invoice dated 31.07.2017 became due on 10.08.2017 making the last date to file a suit 10.08.2020. The NCLT also dismissed the claim raised by the plaintiff as being hit by delay and laches. Only after the NCLT claim was dismissed, the plaintiff introduced a false averment of an EMI payment. The cross-examination of - 13 PW.1 established that the invoices were independent and distinct and each delay in payment constituted a separate and complete breach giving rise to an independent cause of action. Hence, the plaintiff ought to have filed the suit within three years of the alleged breach. 12. It is further contended that PW.1 admitted that each agreement was executed for a specific period and the claims under Work Orders 1 and 2 cannot be raised at the end of the limitation period of Work Order 3. The Commercial Court had erred in treating the Work Orders as a continuation of each other and in holding that the cause of action for breaches under Work Orders 1 and 2 could be entertained within the limitation period applicable to Work Order 3. 13. It is contended that the Commercial Court selectively scrutinized the evidence on record. An unsigned document, being a worthless piece of paper, cannot confer any legal right or benefit on either party. PW.1 admitted that there was no agreement dated 26.03.2013, and for any enforceable contract, consensus ad idem must exist between - 14 the parties. The defendant neither signed nor acted upon the alleged agreement. As per the agreed terms, the commission rate was 6%, and the Commercial Court exceeded its jurisdiction by altering the contractual terms, reducing the commission to 3% and effectively rewriting the agreement without any pleading to that effect. 14. It is further submitted that the plaintiff failed to establish that the Company had received the entire amount from its customers, yet claimed entitlement to payment from the defendant. The Commercial Court dismissed the limitation issue, relying on the observation that DW.1 admitted the payment period extended to 60 EMIs. The Company prays to set aside the order passed by the Commercial Court as it was passed without application of mind. 15. In support of his contentions, the learned senior counsel has relied on the following citations:- (i) In State of Gujarat v. Kothari and Associates reported in (2016) 14 SCC 761 - the successive breaches - 15 and limitation how to be reckoned are held in paragraphs No.11, 12 and 16, which read as follows:- ”11. x x x x x The factual matrix presents a situation of successive or multiple breaches, rather than of a continuous breach, as each delay in handing over the canal/site by the appellant State constituted to a breach that was distinct and complete in itself and gave rise to a separate cause of action for which the respondent could have rescinded the contract or possibly claimed compensation due to prolongation of time and resultant escalation of costs. x x x x x The suit was required to be filed within three years of the happening of each breach, which would constitute a distinct cause of action. x x x x x 12. x x x x x In a sense, a fresh contract would be deemed to have been entered into between the parties on the grant of each of the extensions. It is, therefore, not legally possible for the respondent to contend that there was a continuous breach which could have been litigated upon when the contract was finally concluded. x x x x x 16. It is thus clear that the respondent failed to file the suit for damages within the period prescribed in the Limitation Act. The suit is required to be dismissed on this ground alone. The impugned order is, therefore, set aside, and the appeal is allowed, but with no order as to costs." - 16 (ii) In Hope Plantations Ltd v. Taluk Land Board, Peermade and another reported in (1999) 5 SCC 590, the Apex Court held that the doctrines of estoppel and res judicata based on public policy and justice prevent parties from re-litigating matters already adjudicated. Though distinct, res judicata is often regarded as a branch of estoppel. Res judicata bars re-litigation of the same cause of action and issues necessarily decided in prior proceedings even if the prior is demonstrably wrong. Once an issue attains finality, parties are estopped from contesting it in the same or subsequent suits, except by appealing to a higher forum. Section 11 of CPC embodies res judicata, but the scope of the doctrine extends beyond its statutory expression and applies equally to proceedings before administrative authorities. 16. The learned counsel appearing for the plaintiff, on the other hand, contends that DW.1, in his cross- examination, admitted the existence of Work Order 3 for 600 classrooms on or around 26.03.2013. DW.1 confirmed that Akal Academy was to pay the contractual amount in 60 - 17 EMIs, a mechanism applicable to all three Work Orders, and that the Company had received payments in 60 instalments, with the final instalment in March 2018. According to this, the plaintiff, established the existence of an agreement dated 26.03.2013, based on which Work Order 3 was issued to the defendant through the plaintiff. The Commercial Court, however, failed to provide reasoning as to why the plaintiff’s entitlement to the principal amount was rejected. 17. It was further contended that the Commercial Court failed to provide any reasoning for altering the principal amount payable to the plaintiff or for reducing the contractually agreed commission. The observation that the transaction was not commercial in nature is vitiated by non- application of mind, as the Commercial Court failed to appreciate both the nature of transaction and the high value of the subject matter in dispute. The plaintiff had claimed interest at 18% p.a. which remained uncontroverted, as the Company led no evidence to disprove it. Accordingly, the plaintiff is entitled to interest at 18% p.a from the date the debt became due until the disposal of the proceedings. The - 18 Court fee was also paid by the plaintiff after adding 18% interest on the principal amount owed by the defendant. 18. It is also submitted that the defendant still owed two instalments under Work Order 1 and fourteen instalments under Work Order 2. DW.1 admitted that no bank statements or evidence were produced to prove that all dues had been cleared. It was argued that a signature is not the sole requirement for a valid agreement, as offer, acceptance, and consensus ad idem are sufficient to establish enforceability. The defendant, through various emails, acknowledged the existence of the third agreement, assured the plaintiff of returning the executed version, and confirmed the same in multiple times. 19. It is also contended that although there was no contractually agreed quantum of interest, the defendant failed to produce any evidence countering the plaintiff’s claim for interest. The Commercial Court’s refusal to grant interest resulted in injustice, allowing the defendant to benefit from its own default, while the plaintiff was forced to initiate legal proceedings. The plaintiff, therefore, prays for - 19 the Commercial Court’s judgment to be set aside the judgment to the extent of partial rejection of Issues No.1 to 3 and 11, and sought a decree for the entire claim of Rs.76,74,048/-, along with Rs.62,86,034/- as accrued interest up to the initiation of proceedings. The plaintiff further sought pendente lite and future interest at 18% p.a. until realization. 20. We have considered the contentions advanced and given our anxious consideration to the pleadings and the evidence on record. The issue which arises for consideration in this appeal is whether the plea raised by the appellant that the suit was barred by limitation was correctly decided by the Commercial Court. The plaint averments were specifically that the parties entered into Channel Partner Agreements dated 29.08.2011, 01.03.2012 and 26.03.2013 and Consultancy Agreement dated 07.11.2013. The claim in the plaint was with regard to money payable under the said contracts. The plaint specifically states that the amounts claimed are due from the defendant as commission for services in procuring Order 1, 2 and 3 for the benefit of the - 20 defendant from Kalgidhar Trust (Akal Academy). It was further contended that the amount of Rs.11,59,200/- due under Order 1 was agreed to be paid by the defendant in 60 equal monthly instalments of Rs.19,320/- each. Similarly, with regard to Order 2, it was contended that the payments are to be made in 60 equal monthly instalments of Rs.58,672/-, while under Order 3, the amounts owed are Rs.1,13,400/- per month for 60 months commencing from April 2013. 21. However, in the written statement, the defendant took the specific stand that the suit is hopelessly time barred since amounts were due from 2011, 2012 and 2013 onwards and a legal notice was issued by the plaintiff on 12.09.2015 on the basis of the very same agreements claiming the very same amounts. It is submitted that even if the time is taken from 12.09.2015, when a demand was raised, the suit ought to have been filed by 11.09.2018. It was contended that the suit filed on 17.09.2021 cannot be saved by raising belated demands or setting up a case of payment by instalments which is not part of the agreements at all. - 21 22. Having considered the contentions advanced, we notice that the agreements which are produced as Exs.P.1, P.2 and P.3, do not provide for payment of the commission due in instalments. As a matter of fact, the provision with regard to fees is at Clause 5 at Ex.P.1 - Channel Partner Agreement dated 29.08.2011. It reads as follows:- "5. Fees: PEARSON EDUCATION SERVICES will pass on 6% (Six percent) of the total revenue, exclusive of taxes to the CHANNEL PARTNER on the successful promotion of PEARSON EDUCATION SERVICES products among its clients ("Customer"). All payments will be made prorata to the money collected from the Customer, within 10 working days of PEARSON EDUCATION SERVICES receiving an invoice from the CHANNEL PARTNER." 23. Further, Clause 2 in the agreements provides a specific term for each contract. For example, Clause 2 in Ex.P.1 reads as follows:- ”2. Term: This Agreement shall be effective from September 2011 and shall be for a term of 6 (six) months, i.e., until February 2011 ("Term"), unless terminated prior thereto in accordance with the terms hereof. The Term of this Agreement may be extended for such further periods as may be mutually agreed to in writing on the same terms as - 22 set out herein, subject to variation in the fees payable. 24. We notice that the same clause is available in Exs.P.2 and P.3 contracts. The contracts in question are separate contracts for distinct periods as evident from the contracts. The defendant admitted the first two contracts but contended that the amounts due are time barred. They denied the formal execution of Ex.P3 but admitted the existence of the contract in the evidence. The claims raised by the plaintiff therefore became relevant. The relevant portion of the legal notice dated 12.09.2015 which is produced by the defendant as Ex.D4, reads as follows:- "6. We further say under instructions that our client has been regularly raising monthly invoices on pro rata basis for his commission as per the agreement. The chart annexed along with the present legal notice as Annexure 1 would reflect the invoices raised by our client on pro rata basis, as per agreement, of different clients. The said invoices have been duly received and acknowledged by you the addressee without any demur. The total amount that has fallen due against you the addressee until today is Rs.50,95,164.00 (Rupees Fifty Lacks Ninety Five Thousand One Hundred Sixty Four Only). - 23 7. We further say under instructions that our client has been receiving the payments towards the invoices but recently since December 2014, you the addressees have started adopting dilly dallying tactics and have not been remitting the legitimate amount towards the invoices of our clients, which our clients are legally entitled to and you the addressees are legally, morally and ethically under legal obligation to pay. You the addressees though are getting the payments from the clients regularly but you the addressees are not remitting the commission amount to our client, as per the agreement. x x x x x Annexure 1 x x x x x Payment due as on 12.09.2015 Client Amount due with interest @24% Akal Academy 100 C/R Order 1 210000 229525 334 C/R Order 2 637740 697035 600 C/R Order 3 4176900 5124420 SPS Order 1 Order 2 61776 71965 IPS Order 1 Order 2 8748 11164 Total 50,95,164 61,34,109.00" - 24 25. The Commercial Court had found that DW.1 in his cross-examination had admitted that the amounts were payable in installments and that the amount due would be payable on the installments being paid by the end customer. The relevant portion of the cross-examination reads as follows:- "11. It is true that Akal Academy had to pay the contractual amount in 60 EMIs to the defendant. This payment mechanism was applicable for all three orders. Whenever the Academy made payment, the amount was received in the defendant's bank account." 26. It is to be noticed that this was the specific contention of the plaintiff in the suit and in his deposition as well. It is further clear from a reading of Ex.D4 - Legal Notice that the claim raised was specifically with regard to the amounts which were payable on the instalments granted by the defendant to the end customer falling due and on invoices being raised thereupon. It is further apparent from Ex.D4 that the amounts claimed in Ex.D4 were with regard to the amounts remaining unpaid in respect of Work Orders 1 and 2 as also the amounts remaining unpaid in respect of - 25 Work Order under 3 to an extent of 22 instalments, that is, till 12.09.2015. The specific case of the plaintiff was that the defendant has defaulted in making payments since December 2014. The defendant, in its reply notice had not denied the statement in the notice issued by the plaintiff that the amounts were payable by the end customer in instalments and that the commission was payable on realisation of the amounts from the end customer. It is therefore clear that the amounts due would be payable on payments being made by the customer and on invoices being raised once the commission amount became payable 27. On an anxious consideration of the pleadings and the evidence placed on record, we are of the opinion that the claim raised in the plaint with regard to the amounts payable as commission on the Work Orders 1 and 2 were due from October 2011 onwards. Even if the contention that the amounts were payable in 60 equal monthly instalments is accepted, the monthly instalments would cease by 2016 and 2017, respectively and the suit filed seeking realisation of the amounts would not be maintainable. However, with - 26 regard to Work Order 3, it was the specific and uncontroverted contention of the plaintiff that the instalments fell due from 30.03.2013 onwards and that the amount was to be paid in 60 equal monthly instalments. The last of the instalments, even as per the statement of the plaintiff would fall due on 30.08.2018. Taking note of the decisions relied on by the parties as also the specific provision of Article 55 of the Limitation Act, 1963, the claim for compensation for breach of contract will have to be raised within three years since when the contract is broken or when the breach in respect of which the suit is instituted occurs or when it ceases. 28. Even if the contentions of the plaintiff are accepted in toto, the clause in the agreement provided for payment of the commission pro rata to the money collected from the customer within 10 working days of the defendant receiving an invoice from the plaintiff. Admittedly, the invoices would become payable on the end customer making the payment to the defendant and on the plaintiff raising an - 27 invoice referable to such payment made by the end customer. 29. In the instant case, there is no record produced by the plaintiff to show that the end customer did make the payments to the defendant and that the invoices were raised within 10 days from the date of such payment being made by the end customer to the defendant. Further, even if each breach is taken as a separate cause of action, the entire amounts claimed under Work Orders 1 and 2 would be time barred, so also all the invoices raised on instalments which fell due till 30.03.2017 would also stand barred by limitation. 30. Mere raising of separate invoices long after the amounts became due and payable will not constitute a fresh cause of action to save limitation. It is also pertinent to note that the plaintiff had approached the NCLT, filing an application under Section 9 of the IBC on 02.11.2017. By Ex.D.9 order dated 09.10.2018, the NCLT dismissed the application holding that the application is belated since the debt in question fell due on various dates on or after - 28 October 2011, July 2012 and April 2013. The notice dated 12.09.2015 was also specifically referred to. 31. Though the copy of invoices had been produced by the plaintiff, in the cross-examination PW.1 specifically stated at paragraphs No.10 to 14, which read as follows:- "10. I have received certain sums from the defendant through bank transfers towards some of the invoices in respect of work orders 1 and 2. I do not remember the exact amount received from the defendant. I have recorded the transactions between me and the defendant and the payments received in Excel format. I have no difficulty to produce the same as well as my bank statement. 11. I used to communicate with the defendant through email and then follow up over the phone. It is not correct to suggest that the defendant communicated only through emails, most of the time they used to communicate over the phone and personally through their representative in Delhi. I used to generate invoices, immediately send the same to the defendant by email as well as send the hard copy by post. I do not have receipts for having sent the invoices by speed post but I have the speed post registration number. 12. According to me the prorate payment in para Clause 5 of Ex.P1 is based on the end client's payment to the defendant over a period of 60 months and that's how I used to raise invoice on - 29 monthly basis. This must be recorded even in the agreement. I will have to check if there is a communication from the defendant in this regard." 13. Most of the times I have raised invoices only after confirming from the end client either through email or phone with regard to payment of EMI to the defendant, can produce the emails in this behalf. 14. I did issue notice to the defendant under IBC code and also initiated proceedings. The same was dismissed by the NCLT as there were pre existing disputes. It is true that I had initiated proceedings before NCLT in respect of the invoices produced in this suit. I have not challenged the order of NCLT. When I filed this suit I was aware of the NCLT proceedings and the order passed. There was no impediment to plead about the same in the plaint." 32. With regard to instalments which were due after 30.03.2017 to 30.08.2018 also, in the absence of any acceptable evidence that the instalments had actually been paid by the end customer and that invoices had been raised within 10 days from such payment, and communicated to the defendant, we are of the opinion that the findings recorded by the Commercial Court cannot be supported. The mere raising of separate invoices from 2016 onwards for - 30 amounts already due is clearly only an attempt made by the plaintiff to get over the fact that the claims were time barred. However, we notice that apart from producing the invoices, no evidence to show the communication of the invoices to the defendant has been produced by the plaintiff. Further, though admittedly, payments have been received from the defendant and a record of the same are said to be available with the plaintiff, the details are not produced. The emails with the end customers with regard to payments made by them to the defendant are also not produced. Moreover, the specific case of the plaintiff is Ex.D4 - legal notice dated 12.09.2015 is that the defendant's has committed default in payment of commission from December 2014 onwards. The findings recorded by the Commercial Court are therefore unacceptable in law and facts. 33. We are of the opinion that the judgment of the Commercial Court is therefore liable to be set aside. In the result:- (i) COMAP No.177/2024 is Allowed. - 31 (ii) COMAP No.198/2024 is Dismissed. (iii) The judgment and decree dated 22.02.2024 passed by the LXXXIV Additional City Civil and Sessions Judge, Bengaluru in Commercial O.S.No.603/2021 is hereby set aside. (iii) The suit in O.S.No.603/2021 shall stand dismissed. All pending interlocutory applications shall stand dismissed in both the appeals. Sd/- (ANU SIVARAMAN) JUDGE Sd/- (DR. K.MANMADHA RAO) JUDGE cp*