Delhi District Court
Cs. No. 523/10 M/S Chemical And ... vs . M/S Zoom Developers Pvt. Ltd. on 15 May, 2012
CS. No. 523/10 M/S Chemical And Metallurgical Design Company Ltd. Vs. M/S Zoom Developers Pvt. Ltd.
IN THE COURT OF SHRI J.P.S. MALIK : ADDITIONAL DISTRICT
JUDGE04 : SOUTH DISTRICT : SAKET COURT COMPLEX
NEW DELHI
CS. NO. 523/10
IN THE MATTER OF :
M/S Chemical And Metallurgical Design
Company Ltd.
(Formerly known as PBC Ventures. Ltd.)
25, Community Centre,
East of Kailash, New Delhi110065
Also having its office at:
Paharpur Business Centre
21, Nehru Place, New Delhi 110019 .....Plaintiff
Versus
M/S Zoom Developers Pvt. Ltd.
Thapar Farms, D 3, Church Road
Near Shanti Kunj Mani
Vasant Kunj, New Delhi 110070
Also At:
Ground Floor, Aurbindo Marg, Green Park,
New Delhi 110016 India
Regd Office At:
7th Floor, Chetak Centre,
12/2 RNT Marg Indore452001 ....Defendant
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CS. No. 523/10 M/S Chemical And Metallurgical Design Company Ltd. Vs. M/S Zoom Developers Pvt. Ltd.
Date of institution of case : 15.03.2010
Date of Reserving order : 09.05.2012
Date of Judgment : 15.05.2012
ExParte Judgment
1.Plaintiff company has filed a suit for recovery of Rs. 14,47,950/ from the defendant. Suit has been filed through its General Manager, Sheel Chand Singhal, who has been authorized by board of directors of the plaintiff company to file, sign, verify the pleadings etc and to institute the present suit for recovery against the defendant.
2. The case of the plaintiff as per the plaint filed is that plaintiff company is engaged into the business of providing office facilities and other allied services including pantry, food and beverages etc, telephone facilities and other services like tour & travels etc. Plaintiff company and the defendant entered into an agreement dated 27.02.08 for the provisions of office facilities and allied services with respect to suit no. 211, at Paharpur Business Centre, 21, Nehru Place, New Delhi on mutually agreed terms and conditions. Office facilities and allied services were provided to the defendant vide contract dated 27.02.08 for a fixed period of six months upon the preagreed charges of Rs. 3,25,000/ per month, subject to Deduction of Tax at Source. Interest free security deposit of Rs. 6,50,000/ was also given by the defendant. Agreement dated 27.02.08 was extended for a period of three months from 01.09.08 till 30.11.08. Defendant remained in business centre up till 07.11.08, when the agreement was terminated. The plaintiff has claimed that as on 30.11.08, there was an outstanding amount of Rs.
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8,85,297/ due from the defendant to the plaintiff. It is also stated that as on 07.11.08, there was a liability of TDS certificates amounting to Rs. 3,94,300/ which was the amount deducted by the defendant towards tax liability. outstanding amount of Rs. 8,85,297/ was also subject to TDS. Certain payments were also received from the defendant on 14.01.09. Through email dated 12.02.09, defendant admitted the total outstanding of Rs. 6,50,000/ and sum of Rs. 5,62,435/ being the amount deducted as TDS. Rs. 2,35,515/ has been claimed as interest @ 2 % per month up to the date of filing of the suit.
3. Defendant was not served and report received was that there was no person in the name of defendant, available at the address given. However, on 19.05.10, appearance was given on behalf of the defendant by Sh. N. K Tripathi and time was sought for filing the written statement. Written statement was not filed and formal proceedings were directed to be taken exparte against the defendant vide order dated 06.12.10, when none appeared for the defendant.
4. Affidavit of two witnesses in evidence of the plaintiff company were filed. PW 1 is Sheel Chand Singhal through whom the suit has been filed, who has deposed as regard the facts stated in the plaint filed and has proved the documents Ex. PW 1/1 to Ex. PW 1/ 2. PW2 Deshandra Nath Renjen is General Manager, Marketing, of the plaintiff company and has testified as to the facts of the case stating that he was looking after the marketing of Paharpur Business Centre, a division of plaintiff company.
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5. Arguments were heard on behalf of the plaintiff company. Written submissions were also placed on record on behalf of the plaintiff. I hold as under :
6. The plaintiff has relied upon the admissions made on the part of the defendant regarding its liability through email dated 12.02.09, which has been proved by PW1 as Ex. PW1/7. Ex. PW 1/7 states that correct outstanding till 07.11.08 was Rs. 8,66,573/ and liability towards TDS was Rs. 1,67,750/ and net amount due to the plaintiff was Rs. 6,98,823/. These were the details of adjustment in Paharpur Business Centre. Defendant has also given the details of adjustment in Chemical and Metallurgical Company Ltd., the plaintiff company where outstanding till 07.11.01 was admitted to be Rs. 18,724/. Rs. 385/ was the liability on account of TDS and net amount due was Rs. 18,339/. Defendant deducted the security deposit of Rs. 6,50,000/ in adjustment in the account of Paharpur Business Centre, and stated that net amount due was Rs. 48,823/.
7. As per Ex. PW1/7, payment of Rs. 48,823/ in favour of Paharpur Business Centre was made by the defendant vide cheque no. 392103 dated 12.01.09 drawn on Corporation Bank and amount of Rs. 18,349/ was paid vide cheque dated 12.01.09, in favour of Chemical and Metallurgical Company Ltd. which the defendant claimed to be in full and final settlement of the payments of the plaintiff company after adjustment of the security deposit of Rs. 6,50,000/, whatever the acknowledgment, vide Ex. PW1/7, made on behalf of the defendant 4of7 CS. No. 523/10 M/S Chemical And Metallurgical Design Company Ltd. Vs. M/S Zoom Developers Pvt. Ltd.
after adjustment of the security deposit of Rs. 6,50,000/, there was no liability on the defendant except on account of the claim of not issuing the TDS certificates for the amount deducted as TDS.
8. PW1 Sheel Chand Singhal stated in his affidavit that vide email dated 12.11.08, upon termination of the agreement on 07.11.08, defendant intimated the plaintiff about adjustment of the outstanding amount from the security deposit. That request was not acceptable to the plaintiff company as the same was against the provisions of the agreement. The case of the plaintiff is that as per the agreement, defendant was first to clear the entire dues payable to the plaintiff company and it was only thereafter, the plaintiff company was liable to refund the security deposit after 60 days. Agreement dated 27.02.08 has been proved as Ex. PW1/3 by PW1 and as per clause 3 (E) of the agreement, security deposit was to be refunded 60 days after the termination of the agreement and cessation of availing of facilities and services and subject to payment of all outstanding charges including TDS certificates, and refundable security deposit was to bear no interest.
9. After the termination of the agreement between the parties, it was unreasonable on the part of the plaintiff company to insist on the payment of charges and the dues of the plaintiff company first by the defendant and then to refund the security deposit after 60 days, not agreeing to the deduction of the security deposit while making out full and final settlement of the dues between the parties. As per Ex. PW1/7, 5of7 CS. No. 523/10 M/S Chemical And Metallurgical Design Company Ltd. Vs. M/S Zoom Developers Pvt. Ltd.
it is also being relied upon on behalf of the defendant company, the defendant company was not liable to pay any amount to the plaintiff company except issuance of TDS certificate if the adjustment of the security deposit was agreed to by the plaintiff company. The plaintiff company is asking for an interest @ 20 % per month on the amount of Rs. 6,50,000/ which was due in case adjustment of security deposit was not allowed, while retaining the equivalent sum of Rs. 6,50,000/ as total deposit without any interest payable on the amount. The plaintiff is not entitled to recover the amount of Rs. 6,50,000/ from the defendant and since the said amount of Rs. 6,50,000/ throughout available to the plaintiff company after termination of the agreement between the parties, there can be no claim on account of interest on the said amount.
10. The plaintiff has claimed and has been deposed in that regard both by PW1 and PW2 that deduction amounting to Rs. 5,62,435/ were made by the defendant company while making payments against invoices raised during the continuation of agreement between the parties and it is claimed that plaintiff company has already filed its income tax return for the financial year 20082009 and after filing of the income tax return, there is no provision under law for claiming adjustment or refund of the deducted amount from the concerned department of income tax. As such, it is claimed that amount of Rs. 5,62,435/ deducted towards TDS by the defendant becomes the actual amount recoverable from the defendant. In that regard plaintiff company has relied upon a case decided by Hon'ble Bombay High Court titled as Yashpal Sahni Vs. Rekha Hajarnavis, Assistant reported as 2007 (109) 6of7 CS. No. 523/10 M/S Chemical And Metallurgical Design Company Ltd. Vs. M/S Zoom Developers Pvt. Ltd.
Bombay LR1537. It was a case of the petitioner who had claimed credit of TDS amounting to Rs. 6,66,000/ having been deducted by the employer while making payment of salary to the petitioner from April 1996 to December 1996. TDS amount was not deposited with the department by the employer and the department sought to recover the said amount of Rs. 6,66,000/ alongwith penalty from the petitioner, which was held to be not recoverable from the petitioner by Hon'ble Bombay High Court. It is the case of the plaintiff company that TDS certificates were not issued by the defendant and income tax returns for the financial year 20082009 has already been filed by the plaintiff company and it is not possible for the plaintiff company to get refund of the amount from the income tax department. In such circumstances, plaintiff company is entitled to recover the sum of Rs. 5,62,435/ which was deducted towards TDS by the defendant and TDS certificates were not issued. Pendente lite and future interest @ 12 % per annum on the amount is allowed to the plaintiff company alongwith the costs of the suit. Decree be drawn accordingly.
Announced in the open Court (J.P.S. MALIK)
on 15.05.2012 ADJ04 : SOUTH DISTRICT
All pages signed NEW DELHI
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CS. No. 523/10 M/S Chemical And Metallurgical Design Company Ltd. Vs. M/S Zoom Developers Pvt. Ltd.
CS. No.523/10
15.05.2012
Present: None.
Vide separate exparte judgment of the date, a decree for a sum of Rs. 5,62,435/ is passed in favour of the plaintiff company and against the defendant. Pendente lite and future interest is allowed @ 12 % per annum. Costs of the suit is also allowed to the plaintiff company. Decree be drawn accordingly.
File be consigned to record room.
(J.P.S. MALIK) ADJ04 : SOUTH DISTRICT NEW DELHI : 15.05.2012 8of7