Delhi District Court
Tuli P Techno Engineers vs R D Verma And Co (P) Ltd on 26 November, 2024
DLND010149872018
IN THE COURT OF MRS VINEETA GOYAL,
DISTRICT JUDGE (COMMERCIAL-03),
PATIALA HOUSE, NEW DELHI
CS (COMM) No. 64/2018
CNR No.DLND010149872018
Tulip Techno Engineers,
A Registered Partnership Firm,
Registered under the Indian Partnership Act,
Through Sh. Ajay Kumar Sharma,
Its Registered Partner,
586/6, 2nd Floor,
Govind Puri, C. Lal Chowk,
Opp. Okhla Industrial Area Phase-III,
New Delhi-110019.
Also At :-
433, Sector-2, Chiranjiv Vihar,
Ghaziabad-201002. ....Plaintiff
Versus
M/s. R.D. Varma & Co. (P) Ltd.,
A Company Incorporated,
Under Companies Act, 1956,
Having its Registered Office at,
16th Floor, Gopal Dass Bhawan,
28, Barakhamba Road,
New Delhi. ....Defendant
SUIT FOR RECOVERY OF RS.61,41,302/-
Digitally signed
by VINEETA
GOYAL
VINEETA Date:
GOYAL 2024.11.26
17:21:06
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Counter Claim No.: 06/2019
Tulip Techno Engineers,
586/6, 2nd Floor,
Govind Puri, C. Lal Chowk,
Opp. Okhla Industrial Area Phase-III,
New Delhi-110019. .... Respondent / Plaintiff
Versus
M/s. R.D. Varma & Co. (P) Ltd.,
Gopal Dass Bhawan,
28, Barakhamba Road,
New Delhi. ....Counter Claimant / Defendant
COUNTER CLAIM FOR RECOVERY OF RS.67,09,173/-
Date of Institution of suit : 10.12.2018
Date on which judgment pronounced : 26.11.2024
Appearance : Sh. Bhushan Kapoor, Ld. Counsel for plaintiff in
main suit and for defendant in counter claim.
Sh. Ashok Chhabra and Sh. B.Shekhar,
Ld. Counsels for defendant in main suit and for
counter claimant in counter claim.
JUDGMENT
1. The plaintiff has filed the present suit for recovery of Rs.61,41,302/- (Rupees Sixty One Lacs Forty One Thousand Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:21:15 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 2 / 47 Three Hundred and Two Only) along with pendente lite and future interest @ 18% p.a. as well as costs against the defendant. The defendant has also filed a counter claim seeking recovery of Rs.67,09,173/- (Rupees Sixty Seven Lacs Nine Thousand One Hundred and Seventy Three Only) along with pendente lite and future interest @ 12% p.a. as well as costs against the plaintiff.
2 Vide this common judgment, I shall dispose off suit as well as counter claim filed by the parties. For the sake of convenience, the defendant / counter claimant has been referred as defendant and plaintiff / non-counter claimant has been referred as the plaintiff.
3 Brief facts as epitomized in the plaint are that plaintiff is a partnership firm, registered under the Indian Partnership Act. Sh. Ajay Kumar Sharma, being the registered partner of the plaintiff firm, is competent to file the present suit on behalf of the plaintiff and to engage advocate, sign and verify pleading and to take all such steps as he may deem fit and proper.
3.1. It is further averred that plaintiff, being engaged in the business of construction, vide Letter of Intent (in short 'LOI') dated 03.01.2014, was awarded construction work for construction of 'club building' and construction of commercials at Palm Grove Heights, 52, Ardee City Gurugram (Haryana) for the value of Rs.72,73,058/- by the defendant. It is further averred that Digitally signed by VINEETA GOYAL VINEETA Date:
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the work awarded to the plaintiff vide LOI dated 03.01.2014 for the value of Rs.72,73,058/- was completed by the plaintiff in all respects on 08.04.2016 and the plaintiff was made payment against the work done from time to time and the last payment for the work done against the said LOI was made on 09.05.2016.
3.2. It is further averred by the plaintiff that though it was not a term of the contract in the LOI but still the defendant deducted security deposit amount of Rs.3,09,781/- from the running bills of the plaintiff and the said payment has not yet been released despite repeated request, personal visits and reminders sent to the defendant in this regard and thus, under the LOI, the defendant is liable to pay a sum of Rs.3,09,781/- along with interest @ 18% p.a. as per details given in the plaint.
3.3. It is further averred that vide another letter of intent dated 25.06.2013 bearing no.RRA/RD/LOI/CIVIL-003, the plaintiff was awarded balance work for civil, structure and finishing service work for construction of residential flats for Towers A-2 & C-1 at Palm Grove Heights at Ardee City, for the value of Rs.4,38,87,925/-. The plaintiff, immediately after award of the work, started executing the work that was being supervised by M/s. RRA Project Management, the consultant, appointed by the defendant. The role of the consultant so appointed was not only to supervise the work but also to verify the bills submitted by the plaintiff for work done. The arrangement for payment to the Digitally signed by VINEETA GOYAL VINEETA Date:
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plaintiff was that the plaintiff would submit its bill which used to be checked, verified and passed for payment by the consultants and thereafter, the payment used to be made by the defendant to the plaintiff. It is further averred that the plaintiff has completed the project so awarded under LOI no.
RRA/Respondent/LOI/Civil-003 dated 25.06.2013 on 30.04.2017 and raised its final bill for the value of Rs.21,83,662/- on 11.05.2017 to the defendant. Despite the fact that the final bill was raised on 11.05.2017 for the work completed on 30.04.2017, the defendant failed to make payment of the said bill.
3.4. It is further averred that though not a term of the contract for deduction of any security in LOI dated 25.06.2013, the defendant deducted security @ 5% amounting to Rs.27,67,944/- from the running bills of the plaintiff, this fact has been confirmed by the defendant while certifying the payment of 11th running bills that was passed for a sum of Rs.9,18,581/-. It is further averred that vide LOI dated 25.06.2013, out of the total security deposit of Rs.27,67,944/-, the defendant paid a sum of Rs.1,50,000/- on 16.03.2017 and a sum of Rs.4,30,000/- on 29.03.2017, total of Rs.5,80,000/- from the security deposit but still there was no reason for holding an amount of Rs.21,87,944/-.
3.5. It is further averred that during the progress of the contract of work of Nursery School, the defendant from time to time deducted security @ 5% from running bills and in the Digitally signed by VINEETA GOYAL VINEETA Date:
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process deducted security of an amount of Rs.1,36,703/-. Against the said security amount, the defendant paid a sum of Rs.1,15,475/- on 17.01.2017 leaving a balance of Rs.21,229/- still not paid by the defendant.
3.6. It is further averred that during the course of execution of work, the plaintiff had stocked surplus bricks at the site for the work that was completed and the defendant requested the plaintiff to permit defendant to take over and use those bricks against payment which was agreed between them. The value of the bricks so supplied to the defendant and taken over by defendant was to the tune of Rs.1,40,000/- and the bill for the bricks was submitted on 12.12.2016 to the defendant but the payment has not been made despite repeated requests. The plaintiff submitted that the defendant in all is liable to pay a sum of Rs.61,41,302/- to the plaintiff, as per details given below :-
S.No. Particulars Amount
i) Security deposit in LOI dated Rs.3,09,781/-
03.01.2014
ii) Interest @ of 18% p.a. on the Rs.90,611/-
aforesaid amount from 01.04.2017
up till 15.11.2018
iii) Payment for the work done under Rs.21,83,662/-
LOI dated 25.06.2013 and not paid
Interest @ of 18% with effect from Rs. 6,39,974/-
29.03.2017 i.e. 30 days after the
date of final bill till 15.11.2018
iv) Security deposit LOI dated Rs.21,87,944/-
25.06.2013
v) Interest on five above @ 18% Rs. 5,15,344/-
from 25.07.2017 i.e. 30 days after
date of the final bill till 15.11.2018
vi) For the work done for nursery Rs. 21,227/-
Digitally signed
by VINEETA
GOYAL
VINEETA Date:
GOYAL 2024.11.26
17:21:50
+0530
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school
Interest on seven above @ 18% Rs. 6,209/-
from 01.04.2017 till 15.11.2018
vii) Supply of Bricks Rs. 1,40,000/-
viii) Interest on eight above @ 18% Rs. 46,550/-
from 11.01.2017 till 15.11.2018
TOTAL Rs.61,41,302/-
3.7. It is further averred that the defendant was illegally and arbitrarily holding on the legitimate dues of the plaintiff, therefore, a legal notice dated 02.07.2018 was served upon the defendant demanding the payment of the aforesaid amount along with interest @ 18% p.a. but to no avail. It is further averred that the cause of action accrued in favour of the plaintiff and against the defendant on 09.05.2016 when the final payment under the LOI dated 03.01.2014 was made except security deposit of Rs.2,09,781/-. It also accrued when the bricks, belonged to plaintiff, lying at the site were taken by the defendant. It further accrued on 12.12.2016 when the demand for payment of bricks was so raised by the plaintiff. It further accrued on 17.01.2017 when the defendant out of a total sum of Rs.1,36,703/- deducted as security deposit from the running bills of the plaintiff against work of Nursery School, released an amount of Rs.1,15,474/- leaving a balance of Rs.21,229/-. It further accrued on 16.03.2017 when the defendant against LOI dated 25.06.2013 released the security deposit amounting to Rs.1,50,000/- and on 29.03.2017 when the defendant further released an amount of Rs.4,30,000/- against LOI dated 25.06.2013 and in this manner released an amount of Rs.5,80,000/- out of total security so deducted from the Digitally signed by VINEETA GOYAL VINEETA Date:
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running bills of the plaintiff. It further accrued on 02.07.2018 when the legal notice demanding the amounts due was sent and served and it continues to accrue as long as the payment of amount claimed are not paid.
3.8. It is further averred that the defendant works for gain was at New Delhi, the registered office of the defendant company is at New Delhi, the LOI dated 03.01.2014 and 25.06.2013 were received by the plaintiff at New Delhi and therefore this court has jurisdiction in the matter. Hence it is prayed that a decree for a sum of Rs.61,41,302/- along with pendente lite and future interest @ 18% p.a. be passed in favour of plaintiff and against the defendant.
4. Pursuant to summons issued, the defendant appeared and filed written statement cum counter claim for recovery of Rs.67,09,173/- inter alia raising preliminary objections that the plaint of the plaintiff is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 (in short CPC) as the plaintiff is neither a registered Partnership Firm as required under Section 69 of the Indian Partnership Act nor Mr. Ajay Kumar Sharma is the registered partner.
4.1. On merits, it is submitted by the defendant that the plaintiff was awarded the construction work for construction of club building and construction of commercials at Palm Grove Digitally signed by VINEETA GOYAL VINEETA Date:
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Heights for the value of Rs.72,73,058/-, however, the plaintiff committed breach of the contract and left the work in between and out of the total contract value, the plaintiff only carried out the work for Rs.61,95,619/- which has been paid to the plaintiff and the defendant suffered loss for which a counter claim is being filed. It is further submitted that the defendant has to hire and engage other contractors for completing the work and as such the defendants are entitled to recovery of losses from the plaintiff.
4.2. It is then stated that as regards the contention of the plaintiff that defendant has deducted the security amount, it is submitted that security amount has been deducted for the reason that the plaintiff did not complete the work and work had to be got completed by the defendant by hiring other contractors and from their own construction companies, as such deduction of security lying with the defendant was wholly justified and in accordance with normal practice in the field of construction.
4.3. It is further stated that it is not denied that plaintiff was awarded the work of civil structure, finishing and service work for construction of residential flats for Tower A-2 and C-1 and the value of the work so awarded as Rs.4,38,87,925/-, however, in respect of this work, the plaintiff did not honour the terms and conditions of LOI. The plaintiff failed to complete the work. The kitchen and toilet work of more than 50 flats in both the abovesaid towers were left incomplete and unfinished by the Digitally signed by VINEETA GOYAL VINEETA Date:
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plaintiff and the defendant has to get them completed and in completing finishing work in respect of the said flats, the defendant has already spent Rs.20 to Rs.25 lakhs and will have to incur further about Rs.25 lakhs in finally completing the work. It is further submitted that the cost so incurred in completing the flats is the sole responsibility and liability of the plaintiff as the plaintiff by not completing the flats as per contract, committed breach and therefore, the defendant is entitled to recover this actual loss from the plaintiff.
4.4. It is then submitted that the plaintiff was never diligent, sincere or honest in carrying out the work and because of the breach committed by the plaintiff in not honoring the terms of the contract, the defendant had been put to loss. The reference being made to the role of the Consultant, it is submitted that the bills which have been submitted by the defendant stand fully and finally cleared and there is no bill which stands unpaid and / or pending bills. It is further submitted that the bills which have been submitted by the defendant stand fully and finally cleared and there is no bill which stands unpaid and or pending bills. It is absolutely false to allege that any final bill dated 30.04.2017 for a sum of Rs.21,83,662/- was ever submitted. In this regard, it is submitted that the plaintiff submitted the last and the 12 th bill on 21.03.2016 for an amount of Rs.10,46,816/- and after deducting TDS and Works Contract Tax (WCT) and amount of Rs.9,18,583/- was paid to the plaintiff. After the payment of the said amount, Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:22:32 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 10 / 47 the plaintiff has not carried out any work and had abandoned the work nor any bill whatsoever has ever been submitted. The falsity of the plaintiff is established from the fact that 12 th bill was submitted by the plaintiff on 21.03.2016 and as per understandings with the flat buyers, the possession of the flats were also given to the respective owners / allottees between December, 2015 to March, 2016. After the flats are handed over to the flat owners, the question of getting any additional work or any other work in the flats does not arise. The allegation, therefore, on the fact of it, is false, concocted and baseless and the purported bill for a sum of Rs.21,83,662/- is fabricated bill.
4.5. It is further stated that the defendant has adjusted the security amount rightly and legally. Out of the total amount of Rs.27,67,944/-, an amount of Rs.5.80 Lakhs has been paid back and the total amount of security which has been adjusted is in respect of balance work left incomplete by the plaintiff and the losses caused to the defendant. Therefore, by no stretch of imagination, it can be called that there is any irregularity in the adjustment of the security amount by the defendant.
4.6. It is further submitted that the plaintiff was awarded the contract of work of nursery school but the plaintiff did not complete the work and left the work incomplete. The partial work the plaintiff has carried out is of no use to the defendant as the new contractor who will again carry out the work will have to Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:22:41 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 11 / 47 demolish the said work and restart the work. Therefore, the deduction of amount of Rs.21,229/- is not only justified but apart from the deduction of this amount, the defendant has also to recover the losses caused by the plaintiff in not completing the nursery school. The defendant estimates the loss for more than Rs.40.00 lakhs for which the counter claim is being filed. It is baseless to allege that during the course of the execution of the work, the plaintiff had stocked bricks at the side and they had become surplus. Since there was never any surplus stock the question of permitting to take over these bricks does not arise. It is baseless to allege that value of the bricks so supplied was Rs.1,40,000/-.
4.7. It is further submitted that no principal amount is due and payable, the question of interest on any rate does not arise.
The defendant has already given the details of adjustment of security amount and it will be seen that even after adjusting the security amount from the losses caused, the defendant has to recover huge amounts from the plaintiff. It is further stated that after adjusting the security amount as detailed in the written statement, the defendant is entitled to recover an amount of Rs.67,09,173/- being the loss caused to the defendant and cost likely to be incurred for completing the projects. Hence the suit of the plaintiff is liable to be dismissed and counter claim of the defendant for an amount of Rs.67,09,173/- along with pendente lite and future interest @ 12% p.a. and cost is liable to be decreed.
Digitally
signed by
VINEETA
VINEETA GOYAL
GOYAL Date:
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5. Replication to the written statement cum counter claim of the defendant filed wherein the plaintiff denied the contents of the written statement and reiterated the averments made in the plaint. In addition, it is submitted that the work of construction of Club Building and construction of Palm Grove Heights was completed by the plaintiff. The plaintiff completed the entire work to the satisfaction of the Consultant so appointed by the defendant to check the quality of the work done by the plaintiff and also certified the payment for the work done. As the work has been completed, the plaintiff is entitled to refund of the security deposit and the action of the defendant in alleging that the security has been adjusted is absolutely illegal and not justifiable.
5.1. It is further stated and admitted that the work was awarded to the plaintiff for civil, structure, finishing and service work for construction of residential flats for Tower A-2 and C-1 was of the value of Rs.4,38,87,925/-. It is pertinent to mention here that this was the left over work of the earlier contractor, who on account of non-payment of its dues was compelled to leave the work, which was awarded to the plaintiff, who completed the same and after having completed the work by the plaintiff, the defendant is illegally disputing the payments due for no rhyme or reason. It is submitted that at no point of time, either during the period of contract or after its completion or during the defect liability period, the defendant never ever pointed out any defect to Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:23:01 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 13 / 47 the plaintiff nor did they ever put the plaintiff to any notice with regard to the work not completed by it and therefore, the stand of the defendant that the security stands adjusted in devoid of any merit is frivolous, afterthought and is liable to be rejected.
5.2. It is further submitted that the plaintiff completed the work of the nursery school in all respect and it is for the first time through the present written statement the defendant has come up with a strange plea that the plaintiff partially carried out the work or the same needs to be re-done. It is further submitted that after the plaintiff had completed the work, there were surplus bricks lying at the site, belonging to them and on the request of the defendant, the plaintiff agreed to use the bricks lying at site against payment of Rs.1,40,000/- by the defendant which has been used by the defendant but no payment was made by defendant. It is denied that defendant is entitled to recover an amount of Rs.67,09,173/- as alleged or at all. On these grounds, it is prayed that counter claim be rejected.
6. From the pleadings of the parties, following issues were framed on 12.01.2021 by the then Ld. Presiding Officer:-
(i) Whether the plaintiff is entitled for recovery of the amount, as prayed for? OPP
(ii) Whether the plaintiff is entitled to pendente lite and future interest as prayed for, if so, at what rate? OPP
(iii) Whether the defendant is entitled to recover an amount of Rs.67,09,173/- as prayed for in counter claim? OPD Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
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(iv) Whether the defendant is entitled to interest, if so, at what rate and from which date?OPD
(v) Relief.
7. Thereafter matter was fixed for plaintiff's evidence.
8. It is relevant to mention here that during the course of trial, the defendant/counter claimant moved an application under Order VIII Rule 6 E CPC r/w Section 151 CPC for pronouncing of judgment for taking of written statement filed by the plaintiff to the counter claim stated to be filed on 17.08.2019 i.e. beyond the period of 120 days. Vide order dated 12.10.2021, the then Ld. Presiding Officer allowed the said application.
9. In order to prove its case, plaintiff has examined its authorized representative Sh. Ajay Kumar Sharma as PW-1. He has filed his affidavit and tendered the same in evidence as Ex.PW-1/A and has relied upon following documents which are as under :-
i) Certificate of registration - Ex.PW-1/1
ii) Letter of Intent dated 25.06.2013/contract for the value of work of Rs.4,38,87,925/- - Ex.PW-1/2
iii) Another contract vide Letter of Intent/award for a value of Rs.72,73,058/- - Ex.PW-1/3
iv) Copy of letter dated 11.06.2017 enclosing the final bill
- Ex.PW-1/4 and Ex.PW-1/5
v) E-mail dated 29.06.2017 along with bill / soft copy - Ex.PW-1/6.
vi) Email dated 30.05.2017 - Ex.PW-1/7
vii) Emails detailed in para 14 - Ex.PW-1/8 to Ex.PW-1/18
viii) Legal notice dated 02.07.2018 - Ex.PW-1/19
ix) Postal receipts - Ex.PW-1/20 Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
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x) Tracking report - Ex.PW-1/21
xi) Certificate u/s. 65 B of the Evidence Act - Ex.PW-1/22
xii) Document sent by Deputy Registrar - Ex.PW-1/23
xiii) Certified copy of documents - Ex.PW-1/24 (colly) 9.1 During cross-examination, the PW-1 deposed that the contracts were awarded on 25.06.2013 and 03.01.2014 and that he and Rajneesh Tyagi were the partners, when the contract dated 25.06.2013 was awarded. He admitted it to be correct that at that time, the partnership firm was not registered. He then deposed that even as on the date witness came for his deposition, he and Rajneesh Tyagi were the partners. He denied the suggestion that the partners in the firm in 2014 were different than the partners in the recent firm and this is for reason, he did not file the copy of the partnership deed. He further deposed that Mr. Yadur Kapoor from M/s R. D. Verma & Co. and R. R. A Project Management was the person with whom, they had negotiation before the award was passed. He denied the suggestion that they never had a meeting with Yadur Kapoor, he was unable to state whether Yadur Kapoor was not the Director nor having any official capacity in the said firm. He, however, volunteered to state that they were told that Yadur Kapoor was the client. He admitted it to be correct that time period was specified in the contract. He further deposed that the role of R. R. A Project Management was to supervise the work and verify the bills and its team used to remain at site and Mr. Rajesh Rishi used to represent the said company. He further deposed that he knew Chandan Lakhan Pal, who used to verify the bills on behalf of R. R. A. Project Management. He admitted that Digitally signed by VINEETA GOYAL VINEETA Date:
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after verification of the bills by Chandan Lakhan Pal, the bills used to go to the defendant for payment and the payment in respect to the said bill has been made to them. He admitted that the bill Ex.PW-1/DA bears his signatures at point "A" and that of Chandan Lakhan Pal at point "B". He further admitted that payment in respect of said bill has been made to them and same is his answer with respect to bills Ex.PW1/DB, Ex. PW1/DC and Ex. PW1/DD.
9.2 During his further cross-examination, the PW-1 deposed that they started the construction in respect to the second work immediately after the work was awarded i.e. in year 2014 itself and that they used to procure the material and labour for the said contract and they used to keep the record of the materials and labour. He then deposed that the work was executed in Tower "A2" & Tower "C1", Palm Grove Heights, Ardee City, Gurugram. He further deposed that he knew that the possession of the flats was to be handed over to the flat buyers in 2016. He admitted that the possession of the flats in Tower "A2" was handed over in 2016 to the flat buyers by the Ardee City and that similarly, the possession of the flats was handed over to the flat buyers in Tower "C1". He volunteered to state that the possession was given to the flat buyers, who came to take possession. He then deposed that on the directions of Ardee City, the flat was got inspected to the flat buyer first by them and thereafter, the possession was given. He termed it correct that they had no role in the documentation as to Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:24:07 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 17 / 47 handing over the possession to the flat buyers by Ardee City. He was unable to tell when the power connection in respect of two towers was applied. At this stage, the witness was shown photographs at Page 48 to Page 128 of written statement, he was unable to identify whether the photographs are of the same tower. He denied the suggestion that in 2016, the kitchens /bathrooms were in damaged condition in more than 50 flats in the towers and that they left the construction in between in 2016 and for this reason, the agency had to employ another contractor to complete the work. He further denied the suggestion that the photographs shown to him were taken in the presence of his employee. He further deposed that they had given the final bill to Chandan Lakhan Pal for checking and that he did not have copy of the final bill bearing the signature of Chandan Lakhan Pal. He volunteered to state that as per the procedure, Chandan Lakhan Pal had to check the bill and then sent to the agency for payment. He then deposed that the bill did not come to them after submission. He further deposed that Chandan Lakhan Pal after checking had sent the final bill to the agency for payment and Chandan Lakhan Pal had sent them the payment certificate but the final bill was not sent to the agency in his presence. He admitted it to be correct that he had not seen the checked bill by Chandan Lakhan Pal by himself and that Chandan Lakhan Pal has left the R. R. A. Project Management. The PW-1 admitted that in 2017, Chandan was not working with R. R. A. Project Management. He volunteered to state that Chandan Lakhan Pal started working with R. D. Verma Digitally signed by VINEETA GOYAL VINEETA Date:
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& Co. He denied the suggestion that Chandan never worked with R. D. Verma & Co. He was unaware as to where Chandan Lakhan Pal had been working or stayed. He then deposed that he had talked to Chandan 2-3 times on phone. He denied the suggestion that Chandan never passed the final bill. He volunteered to state that Chandan after checking had informed them that he has sent the bill to the agency for passing. He denied the suggestion that he had never worked on this project after April 2016. He further deposed that he never sent any bill to R. D. Verma Co. directly and that they were given extension to complete the work since the site was not given incomplete. He denied the suggestion that they were given complete site in advance and were solely responsible for the delay. He further deposed that they used to submit the bills in respect of the work done not qua the materials / labours nor they used to give the details about the materials purchased / labour deployed or the record. He termed it correct that they used to send the bills like the bill Ex. PW1/DA. He further admitted that they have received the payments in respect of the work done in the club, however, the security remains to be paid.
10. Thereafter matter was listed for evidence of defendant. DW1 Sh. Chandji Bhat, Accounts officer of defendant company was examined. He tender his affidavit in evidence, as Ex.PW-1/A and relied upon following documents:-
i. Resolution in his favour Ex.DW/CCW1/1.
ii. Summary of Bank statement of defendant containing the extra amount paid to the plaintiff Ex.DW/CCW1/2.Digitally signed by VINEETA GOYAL
VINEETA Date:
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iii. Vijaya Bank Statement (now bank of Baroda)
Ex.DW/CCW1/3.(colly)( 36 pages)
iv. Photographs of towers C1 and A2 Ex. DW/CCW1/4.
(colly)(Page 48 to Page 128)
v. The order of the High Court Dated 15.07.2015
EX.DW/CCW1/5.
vi. Certificate u/s 65B of the Evidence Act
Ex.DW/CCW/1/7.
10.1 During cross examination, DW-1 deposed that
written statement/counter claim and other applications were filed under his signature. He is Accounts Officer and Director of defendant company. Defendant company is engaged in real estate development. It is a private limited company. All the accounts of their company which have also been filed with ROC since 2013. They used to maintain separate ledger for each contractor. They did not receive the material from the vendors so, they did not maintain ledger for the vendors. He termed it correct that they have maintained the ledger account of the plaintiff. They have not filed the ledger account of the plaintiff with the written statement or the counter claim. He termed it correct that plaintiff was awarded three contracts i.e. one for club building, second for residential flats and third for nursery school. He admitted that separate ledger account is maintained for each contract. He was unable to recollect when the plaintiff left the contract. They have filed the details of the work which was not done by the plaintiff. They have not filed any photograph of the club since there was no dispute as to the construction of the club building. The photographs are of the residential flats. They withheld/adjusted Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:24:38 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 20 / 47 the security in respect of the club building towards the excess payments in relation to the residential flats. He could give the details of the contractors from whom they got the remaining work done after the plaintiff left the works/contract. He was unable to recollect if they had sent notice to the plaintiff that the remaining works in respect of the project would be got done at the risk and cost of the plaintiff. He was unable to recall if any letter/mail was sent to the plaintiff regarding the adjustment of the security in respect of the club building from other left over works in respect of different work projects. He was also unable to recall if the details in respect of the expenditure as mentioned in para 04 of the written statement have been filed with written statement or with the counter claim and if the details of future expenditure as mentioned in para 04 have been filed or not. He was also unable to recall if any letter or mail was sent to the plaintiff giving the details of expenditure to be incurred for the left over works and the same reply in respect of the nursery school. He admitted that they have not demolished any structure/work in respect of the nursery school which was executed by the plaintiff. He was unable to recall if any letter/mail was sent to plaintiff alleging that work done by the plaintiff in respect of nursery school is useless. The DW-1 further deposed that he has not filed the bifurcation of the loss caused and the future loss in the counter claim para 06. He was unable to state if the payments were made after verification of measurements and the rates but the payment has been made as per the clauses of the contract. He was unaware if Digitally signed by VINEETA GOYAL VINEETA Date:
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they had written to Project Management Consultant that the bills have not been verified correctly and excess payment has been made. He was not aware if before filing the affidavit Ex.DW-1/A, they had written to the plaintiff regarding the excess payment during the period from 2016 to 2022. He denied the suggestion that the amounts claimed in the counter claim is false and frivolous and that plaintiff is entitled to refund of security deposit.
11. Ld. Counsel for the plaintiff has argued that the plaintiff has successful discharged the burden of proof. It is submitted that the plaintiff's evidence had remained intact whereas the defendant has failed to prove his defence. It is submitted that documentary evidence as well as oral testimony is of sterling quality and therefore, present suit be decreed in favour of plaintiff. Ld. Counsel has argued that the plaintiff has filed instant suit for recovery of Rs. 61,41,302/- against the defendant on the ground that the plaintiff was awarded civil construction work / contract by the defendant with respect to the following construction works as detailed below :-
a) LOI dated 03.01.2014 Ex.PW-1/3 was for the construction work for civil structure and furnishing work of club house building and commercial at Palm Grove Heights, Sector-52, Gurugram, Haryana.
b) LOI dated 25.06.2013 Ex.PW-1/2, contract for balance work of civil structures and finishing, service work for construction of residential flat for Tower A-2 and C-I at Palm Grove Heights, Sector-52, Gurugram, Haryana.
c) Construction of Nursery School within the same premises.
11.1 Ld. Counsel for the plaintiff submitted that out of the Digitally signed by VINEETA GOYAL VINEETA Date:
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claims as detailed in the plaint, one confined to the refund of security deposit of Rs. 3,09,781/-, and other is with regard to the balance payment for work done for nursery school for Rs.21,277/- and the other claim is with respect to supply of bricks for Rs.1,40,000/- and the last claim is with respect to LOI dated 25.06.2013 Ex.PW-1/2 pertaining to the work done and not paid for residential flats in tower A-2 and C-I, Palm Grove Heights, amounting to Rs. 21,83,662/- covered by Ex.PW-1/6 and for Rs.21,87,944/- towards the refund of the security deposit deducted from the running bill of the plaintiff. Undisputedly, the defendant admitted that the security deposit had been deducted by it but the same is not payable to the plaintiff on account of various breaches committed by the plaintiff while executing the work and losses suffered by it. According to defendant, the plaintiff did not execute work properly and it has to incur expenses to get the work executed by the plaintiff to rectify for which security amount stood forfeited. Ld. Counsel for plaintiff has argued that it was incumbent upon the defendant to prove actual loss suffered by it, however, there is no evidence at all to show that defendant has suffered any losses. It is emphasized that it is no more res integra that proof of actual loss is a sine qua non to the claim for loss. No loss could be awarded to the defendant unless and until proof of actual loss is proved. Ld. Counsel for the plaintiff placed reliance upon the judgments in Kailash Nath Associates vs. DDA, 2015 (4) SCC 136 ; Vishal Engineers & Builders vs. Indian Oil Corporation Limited, 2012 (10 Arb.LR.) 253 (Delhi) ; Fiberfill Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:25:13 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 23 / 47 Engineers vs. Indian Oil Corporation Ltd., Manu/DE/1437/2019 ; Indian Oil Corporation vs. Lloyds Steel Industries Ltd., 2007 (4) Arb. Law Report 84 ; and Fateh Chand vs. Balkrishan Das, AIR 1963 SC 1405.
11.2. In addition to above contentions, Ld. Counsel for the plaintiff further submitted that the counter claim of the defendant is liable to be rejected for the reasons that defendant has failed to lead any evidence to prove alleged laws. Prior to the filing of present suit, the defendant had never communicated to the plaintiff that plaintiff did not complete the work and had left the work incomplete. Assuming though not admitting that work was incomplete, the defendant at no point of time even wrote to the plaintiff that such and such work or that a particular work has left incomplete. There is nothing on record to suggest as to the defects in the work as pleaded by the defendant. The defendant further has not placed on record any material to suggest that defects as claimed by defendant were rectified. No notice was ever issued to the plaintiff. The defendant has not disclosed the name of the contractor through whom the alleged defects / incomplete /left work were got rectified / done. The defendant has also not produced the details of the payments, bill/vouchers regarding purchase of material consumed or if any paid to the hired contractors, as alleged. While referring to cross examination of DW-1, Ld. Counsel submitted that DW-1 though admitted that the defendant maintains the separate ledger account of the plaintiff Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:25:28 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 24 / 47 but also stated that defendant has not filed the ledger account of plaintiff on record. DW-1 had also admitted that separate ledger account is being maintained for each contract. Further, DW-1 expressed his inability by stating that he does not remember when the plaintiff left the contract; if defendant has sent any notice to plaintiff that remaining works in respect of project will be got done at the risk and cost of the plaintiff; if any letter /mail was sent to the plaintiff regarding the adjustment of security in respect of club building or that if any letter/mail was sent to the plaintiff giving details of expenditure incurred in the left over work. Ld. Counsel for plaintiff further submitted that defendant withhold the vital evidence and adverse inference can be drawn against the defendant.
11.3. Ld. Counsel for plaintiff has further argued that from the contents of written statement cum counter claim, it transpires that the defendant made a claim for a sum of Rs.25,00,000/- and Rs.40,00,000/-respectively on estimation basis alleging that it would have incurred this much expenditure for getting the leftover / defective work of Tower A-2 and C-1, and Nursery School repaired / completed. He contended that these claims of the defendant are hypothetical and are not covered under Section 73 of the Indian Contract Act. Be that as it may, the said contract (s) were completed in year 2013 to 2015, whereas written statement was filed on 20.03.2019 and till the date of filing of written statement no document has been filed by the defendant which Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:25:39 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 25 / 47 could even remotely suggest that defendant has suffered any loss. In the absence of any proof, the defendant is not entitled to the aforementioned amount towards anticipated expenditure.
11.4 With regard to the claim of Rs.21,83,662/-, being the amount of work done and not paid Ex.PW-1/6, Ld. Counsel for the plaintiff contended that the plaintiff was awarded work of residential flats and Tower A2 and C1, Palm Grove Heights, Gurugram, Haryana. During the progress of work, running bills were raised from time to time and were paid but the last and final bill for a sum of Rs. 21,83,662/- has been withheld by the defendant on the ground that bill was not raised. Ld. Counsel submits that during the course of trial, the plaintiff moved an application for taking on record additional documents on record and vide order dated 12.10.2021, this court allowed the said application and email dated 29.06.2017 along with final bill which was sent as an attachment to the email was taken on record Ex.PW-1/6. While this document is being exhibited an objection has been raised by the defendant during examination-in-chief of PW-1, the said objection was overruled by this Court. The final bill Ex.PW-1/6 was sent to Sh. Chandan Lakhan Pal (vide email dated 29.06.2017 at [email protected]). Sh.
Chandan Lakhan Pal was employed by defendant / Project Management Consultant, who used to certify and verify the bills of the plaintiff and approved them for payment. Post such verification and certification, payments were released by the Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:25:51 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 26 / 47 defendant to the plaintiff. The defendant during the cross examination of PW-1 had confronted the witness with documents Ex.PW-1/DA to Ex.PW-1/DD, and this witness categorically deposed that Ex.PW-1/DA bears his signatures at point "A" and that of Chandan Lakhanpal at point "B" ..... same is my answer in respect of bills Ex.PW-1/DB, Ex.PW-1/DC and Ex.PW-1/DD. After referring to the aforestated cross-examination of PW-1, Ld. Counsel for the plaintiff vehemently submitted that this fact establishes that Chandan Lakhanpal was working for the defendant and was responsible for certifying, verifying and approving the bills / invoices of the plaintiff. Ld. Counsel for the plaintiff further invited attention to the cross-examination of PW-1 conducted by defendant and submitted that defendant during cross-examination of PW-1, did not ask any question on the authenticity of the final bill nor even put any suggestions, suggesting that no extra items were executed and that claim of extra items is not correct. Ld. Counsel submitted that the objection raised by the defendant that since the final bill has not been raised, therefore, defendant is not liable to pay the amount cannot be entertained. Ld. Counsel contended that the final bill Ex.PW-1/6 was submitted in the similar manner as other bills were submitted to the defendant. The defendant at no point of time earlier raised any objection to the manner in which the bills were raised.
11.5 Ld. Counsel for plaintiff had argued that now, the defendant cannot say that final bills were never raised or no work Digitally signed by VINEETA GOYAL VINEETA Date:
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covered in final bill was executed. Ld. Counsel for plaintiff submitted that plaintiff has established on record that plaintiff is entitled for an amount of Rs. 21,87,994/- for the running bills for the work done under Ex.PW-1/3. Ld. Counsel for plaintiff next argued and invited attention of the Court to para 2 of the evidence affidavit Ex.DW-1/A of DW-1 Sh. Chandji Bhatt that the defendant never raised any claim that it had made excess payment to the plaintiff in written statement as well as in counter claim and had raised this plea for the very first time at this stage. There is no whisper in the entire written statement cum counter claim that total contract value of work is Rs.4,60,57,744/- including service tax and other statutory benefits and the total amount paid by the defendant to the plaintiff is Rs.5,53,58,889/- and plaintiff is liable to refund the extra amount received from the defendant. Ld. Counsel submitted that it is well settled principle of amount that no amount of evidence can be looked into in the absence of pleadings. These contentions of the defendant being beyond pleadings, are therefore, untenable. It is further pointed out that DW-1 in his cross-examination expressed his inability and stated that he is not aware, if before filing of affidavit Ex.DW-1/A, during the period from 2016 to 2022, they had written to the plaintiff regarding excess payment. It is asserted by ld. Counsel that it can safely be assumed that claim of defendant towards adjustment of security amount or excess payment is liable to be rejected.
Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:26:11 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 28 / 47 12 Per contra, Ld. Counsel for defendant had argued that LOI dated 25.06.2013 Ex.PW-1/3 contains the total value of contract of Rs.4,38,87,925/- which is fixed without any variations of sale whatsoever, for a period to complete the work. This LOI does not say about any extra work as shown in Ex.PW-1/6 reflecting extra work of Rs.1,02,14,234/-. This bill does not state anything about the amount of Rs.21,83,662/- whether it contains the amount of Rs.58,21,604/- which is now the claim amount of final bill. It is further contended that final bill or email dated 29.06.2017 Ex.PW-1/6 was neither approved by the defendant nor by PMC Consultant namely Sh. Chandan Lakhanpal. Rather the contents of email suggests "To" verify the final bill and release the payment. This indicates that bills were never verified. This email also indicates that it was not written to defendant but to Sh.
Chandan Lakhanpal. Sh. Chandan Lakhanpal or any other employee of PMC Consultant has not been examined by the plaintiff in order to verify the authenticity of email Ex.PW-1/6. Besides this, bill or email Ex.PW-1/6 creates doubt as the earlier bills were raised at the interval of about two months and Ex.PW-1/6 has been raised after three years. Ld. Counsel further pointed out that plaintiff never completed the work as the plaintiff itself requested the defendant to resolve the matter as the plaintiff was struck because it was not allowed to complete the balance work as evident from email dated 10.02.2017 Ex.PW-1/16 as well as email dated 11.01.2018 Ex.PW-1/18.
Digitally
signed by
VINEETA
VINEETA GOYAL
GOYAL Date:
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12.1 With regard to counter claim, Ld. Counsel for
defendant argued that defendant is entitled for an amount of Rs.67,09,173/- as claimed by it. The defendant has established from deposition of DW-1 as well as from documentary evidence in the form of summary statement Ex.DW /CCW-1/2 and 1/3 (colly). Further from the photographs of Tower C-I and A-2 Ex.DW/CCW-1/4 (colly), it is quite evident that plaintiff has not finished the work and which also stood corporated from emails dated 10.12.2017 and 11.01.2018 Ex.PW-1/17 and Ex.PW-1/18 respectively. Apart from, it stands fully established on record that possession of flats in aforesaid towers were handed over in January to April, 2012 and the plaintiff has already left the site much earlier in the year 2013 - 2014. Though the defendant has proved its case of excess recovery which is loss to it, but the defendant prays to pass an order only upto the prayer made in the counter claim.
13 I have heard arguments advanced by Ld. Counsels for the parties and gone through the record as well as written submissions of parties on record. My issue-wise findings are as under :-
Issue No.1 and 3:
14 Both these issues are taken up together for discussion being interlinked. The onus to prove issue no.1 is upon the plaintiff and issue no.3 is upon the defendant.
Digitally
signed by
VINEETA
VINEETA GOYAL
GOYAL Date:
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14.1 It is imperative upon the plaintiff to lead cogent and
convincing evidence that it is entitled for a decree of Rs.61,41,302/- from the defendant. In support of its claim, the plaintiff has examined PW-1 Sh. Ajay Kumar Sharma and has produced documentary evidence i.e. copy of Certificate of Registration of Firm Ex.PW-1/1 on the basis of which it is claimed that plaintiff is registered partnership firm, registered under the Partnership Act, 1932, registered with Registrar of Firms, Societies and Chits, Meerut, vide Registration No.GHA/001 dated 27.10.2018. Copy of LOI dated 25.06.2013 and LOI dated 31.01.2014 are also filed vide which plaintiff was awarded balance work for civil, structure and finishing service work for construction of residential flats for Towers A-2 & C-1 at Palm Grove Heights at Ardee City, for the value of Rs.4,38,87,925/- (herein after referred as A-2 & C-1 contract) and construction work for civil, structure and furnishing work for construction of 'club building' and construction of commercials at Palm Grove Heights, 52, Ardee City Gurugram (Haryana) for the value of Rs.72,73,058/- (herein after referred as Club building contract). In addition of aforesaid work orders, the plaintiff was also assigned / instructed to carry out a miniscule work of Nursery School contract. Plaintiff has also exhibited copy of letter dated 11.06.2017 and enclosing the final bill Ex.PW-1/4 and Ex.PW-1/5 and email dated 29.06.2017 Ex.PW-1/6 alleged to be another soft copy of final bill containing the entire details of all the running Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:26:43 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 31 / 47 bill including final bill sent to the defendant when the plaintiff after some days checked up with the defendant about payment and the plaintiff was informed that bill submitted by it had been misplaced. Plaintiff also exhibited emails Ex.PW-1/7 to Ex.PW-1/18 asking for the payments of the amount due covered under LOI(s) Ex.PW-1/2 and Ex.PW-1/3 when were not forthcoming. Plaintiff has also exhibited legal notice sent to the defendant and receipts as well as tracking reports. The plaintiff has claimed Rs.61,41,302/- consisting of refund of retention of security, payment of final bill and claim of interest on the outstanding amounts. Besides these amounts, the plaintiff also claimed an amount of Rs.1,40,000/- outstanding on account of the bricks retained at the sites. For the sake of convenience and better understanding, the item-wise claim is tabulated as under without the claims of interest @ 18% p.a. which would be discussed separately: -
Particulars Amount
(a) Security deposit in LOI dated 03.01.2014 3,09,781/-
Ex.PW-1/3
(b) Outstanding Payment for the work done 21,83,662/-
under LOI dated 25.06.2013 Ex.PW-1/2
(c) Security deposit LOI dated 25.06.2013 21,87,944/-
Ex.PW-1/2
(d) Outstanding for the work done for nursery 21,227/-
school
(e) Supply of Bricks 1,40,000/-
14.2 It is pertinent to mention here that the defendant
refuted the aforesaid claims of the plaintiff and claimed a Digitally signed by VINEETA GOYAL VINEETA Date:
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counterclaim of Rs.67,09,173/- on the contention that loss was caused to the defendant due to inaction of the plaintiff and breach of contract and the defendant would incur further cost likely for completing the projects / works.
14.3 It would be appropriate to first consider whether the defendant has been successful in establishing that the plaintiff has not discharged its obligation under the contract as detailed above because the defendant has admitted the allotment of work through above contract. The evidence led by the defendant is through Sh.Chandji Bhat, DW1, the Accounts officer of the defendant company as he tendered his affidavit in evidence Ex.DW-1/A and relied upon the main documents such as Summary of Bank statement of the defendant containing allegedly carrying the entries of extra amount paid to the plaintiff Ex. DW/CCW1/2.
Secondly, Vijaya Bank Statement (now Bank of Baroda) Ex. DW/CCW1/3 for the other entities. The Photographs of towers C1 and A2 have been tendered Ex. DW/CCW1/4.
14.4 It is relevant to note that the defendant has taken grounds of defence that the plaintiff has committed breach of contract Ex.PW-1/2 (Club Building) and left the work in between and out of total contract value, the plaintiff only carried out work of Rs.61,95,619/- which had been paid to the plaintiff and defendant suffered loss. The defendant had to hire and engage other contractors for completing the work, thus, defendant Digitally signed by VINEETA GOYAL VINEETA Date:
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deducted the security amount. Further with regard to A-2 & C-1 contract, the plaintiff did not complete the work of the kitchen and toilet work for more than 50 flats in both the aforestated towers and the defendant had to get them completed thus in completing finishing work in respect of the said flats, the defendant had spent Rs.20 to Rs.25 lakhs and will have to incur further about Rs.25 lakhs in finally completing the work. Further the purported bill for a sum of Rs.21,83,662/- is fabricated bill. The defendant adjusted the security amount rightfully. The last and the 12 th bill for an amount of Rs.10,46,816/- and after deducting TDS and WCT, an amount of Rs.9,18,583/- was paid to the plaintiff. The defendant has further taken a defence that the plaintiff was awarded the contract of work of nursery school but the plaintiff did not complete the work and left the work incomplete. The partial work carried out by the plaintiff is of no use to the defendant as the new contractor will again carry out the work will have to demolish the said work and restart the work. Therefore, the deduction of amount of Rs.21,229/- is not only justified but apart from the deduction of this amount, the defendant has also to recover the losses caused by the plaintiff in not completing the nursery school. The defendant estimates the loss for more than Rs.40.00 lakhs for which the counter claim is being filed.
14.5 It is noteworthy to mention here that upon appreciation of evidence tendered by the defendant, none of the documentary evidence tendered by the defendant would help the Digitally signed by VINEETA GOYAL VINEETA Date:
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case of the defendant to establish that plaintiff has failed to
discharge its obligation under the aforestated contract. The defendant has not led any shed of evidence showing the deficiency in the work contract were even pointed out to the defendant. A careful scrutiny of evidence adduced by the defendant shows that it is a case of bald assertion having made without any cogent and convincing evidence. Though the defendant has made an attempt to refer to the evidence of plaintiff by referring to e-mails Ex.PW-1/17 and Ex.PW-1/18, however, these emails would not help the case of the defendant and do not lead to suggest any inference that the plaintiff has not discharged its part of the obligation under the contract. It is relevant to note that the defendant has not led any evidence in support of deficiency of work of the plaintiff except photographs of the Tower C-1 and A-2 Ex.DW/CCW-1/4 (colly) but these photographs are not sufficient to establish that there was any deficiency in the performance of the plaintiff. Further, the counter claim of the defendant also could not be established because the burden of proof of deficiency in the works of the plaintiff was upon the defendant. For the risk of repetition, the cross examination of DW-1 is reproduced for ready reference as under:-
"It is correct that plaintiff was awarded three contracts i.e. one for club building, second for residential flats and third for nursery school. It is correct that separate ledger account is maintained for each contract. I do not remember when the plaintiff left the contract. We have filed the details of the work which was not done by the plaintiff. We have not filed any photograph of the club since there was no dispute as to the construction of the club building. The photographs Digitally signed by VINEETA GOYAL VINEETA Date:
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are of the residential flats. We withheld/adjusted the security in respect of the club building towards the excess payments in relation to the residential flats. I can give the details of the contractors from whom we got the remaining work done after the plaintiff left the works/contract. I do not remember if we had sent notice to the plaintiff that the remaining works in respect of the project will be got done at the risk and cost of the plaintiff. I do not remember if any letter/mail was sent to the plaintiff regarding the adjustment of the security in respect of the club building from other left over works in respect of different work projects. I do not remember if the details in respect of the expenditure as mentioned in para 04 of the written statement have been filed with written statement or with the counter claim. I do not remember if the details of future expenditure as mentioned in para 04 have been filed or not. I do not remember if any letter or mail was sent to the plaintiff giving the details of expenditure to be incurred for the left over works. Same is my answer in respect of the nursery school. It is correct that we have not demolished any structure/work in respect of the nursery school which was executed by the plaintiff. I do not remember if any letter/mail was sent to plaintiff alleging that work done by the plaintiff in respect of nursery school is useless. I have not filed the bifurcation of the loss caused and the future loss in the counter claim para 06."
14.6 Thus, upon the appreciation of documentary as well as oral deposition of DW-1, the defendant did not produce evidence which could be believed in support of the expenditure incurred for correcting the faults made by the plaintiff. There is no evidence which could show the details of such defaults ever having been communicated to the plaintiff. Under such circumstances, the photographs Ex.DW/CCW-1/4 (colly) as such would not help the case of the defendant to sustain a counter claim of the magnitude above which has engulfed the security deposits as well as further claims have been raised. The burden of proof Digitally signed by VINEETA GOYAL VINEETA Date:
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for this part was upon the defendant which it has failed to discharge. Section 73 of the Indian Contract Act, 1872 provides that when a party is aggrieved by a breach by another, he is entitled to claim compensation from the party committing the breach, even if it is not provided for in the contract. The decisions of the Hon'ble Supreme Court in the matters of Fateh Chand v. Balkishan Das, 1963 AIR 1405, Maula Bux v. Union of India, 1970 AIR 1955, Oil & Natural Gas Corporation Limited v. Saw Pipes Limited 2003 AIR SCW 3041and Kailash Nath Associates v. Delhi Development Authority & Anr. 2015 (4) SCC 136 have been crucial in this regard. The basic jurisprudence is that proof of loss incurred is necessary to claim damages under contractual entitlement. In the present case, the defendant's counterclaim fails on this account.
14.7 Another noticeable aspect of this case is that, the defendant at the time of the filing of the evidence affidavit of DW-1 on 05.09.2023, took a completely different line of contention/ argument about the counter claim. An affidavit was tendered as evidence which was not on the lines of pleadings made in written statement but was on the lines that the plaintiff has been overpaid by the defendant. It was contended that the contracts entered with the plaintiff were for fixed value and as per the account statement the defendant has paid extra amount which need to be recovered. It is settled law that alternative and inconsistent pleas are not possible at the stage of defence evidence Digitally signed by VINEETA GOYAL VINEETA Date:
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when the entire trial of plaintiff is over. The Hon'ble Supreme Court in the judgment of Ganesh Prasad v. Rajeshwar Prasad, 2023 SCC OnLine SC 256, has enunciated on this aspect as follows:
"42. A three-Judge Bench of this Court in the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad reported in 1951 SCC 136 : AIR 1951 SC 177, has held that a party is entitled to take alternative pleas in support of its case. Where alternative pleas arose to some extent from the admitted position of the defendant, such plea is not impermissible merely because it is inconsistent with the other plea. It held that a plaintiff may rely upon different rights alternatively and there is nothing in the CPC to prevent a party from making two or more inconsistent sets of allegations claiming relief therein in the alternative. It further observed that although, a Court should not grant relief to a plaintiff in a case in which there is no foundation in a pleading on which the other side was not called upon or had opportunity to meet yet when the alternative case which, the plaintiff could have made was not only admitted by defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes.
43. The view that a plaintiff is entitled to plead even inconsistent pleas while seeking alternative reliefs was reiterated by this Court in G. Nagamma v.
Siromanamma reported in (1996) 2 SCC 25. In that case, a suit for specific performance of an agreement of re- conveyance was filed by the appellants. Later, an application for amendment of the plaint was sought stating that the transactions of execution of sale deed and obtaining a document for re-conveyance came to be a single transaction, i.e., it was a mortgage by conditional sale. So, alternatively plaintiff sought relief to redeem the mortgage. The trial court and the High Court rejected the same on the ground that the suit was filed for specific performance and that the amendment would change the nature of the suit as well as the cause of action. But this Court reversed the said decision and held that since the plaintiff therein was seeking alternative reliefs, he is entitled to plead even inconsistent pleas and that the amendment of the plaint would neither change the cause of Digitally signed by VINEETA GOYAL VINEETA Date:
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action nor would affect the relief.
44. In Praful Manohar Rele v. Krishnabai Narayan Ghosalkar reported in (2014) 11 SCC 316, this Court followed the decision in Firm Sriniwas Ram Kumar (supra) and reiterated the principle that alternative and inconsistent pleas can be taken by a plaintiff. In that case, the plaintiff therein had alleged that the defendant therein and his legal representatives were occupying the suit premises as gratuitous licensees and upon termination of such licence, the plaintiff was entitled to a decree for possession. The trial court found that defendants were tenants and not licensees as alleged by the plaintiff. The 1st Appellate Court recorded a finding to the contrary, held that the defendants were let into the suit property by plaintiff on humanitarian grounds and as gratuitous licensees and the license was validly terminated by plaintiff. It thus, negatived the defence of the defendants that they were tenants. In the plaint itself, the plaintiff therein had taken an alternative plea that he was entitled to vacant possession of the premises on the ground of bona fide personal need, nuisance, annoyance and damage allegedly caused to the premises and to the adjoining garden land belonging to him by the defendants. This Court held that the alternative plea of plaintiff and the defence set up by defendants was no different from each other. The Court held that it was open to the plaintiff not only to take a plea of license but also to alternatively plead tenancy in support of his plea for relief of recovery of possession. The Court held that defendants therein had specifically admitted that the property belongs to plaintiff and that they were in occupation thereof as tenants, and an issue was also framed whether defendants were in occupation as license or as tenants, and defendants had full opportunity to prove their respective cases. So, the defendants cannot be said to have been taken by surprise by the alternative case pleaded by plaintiff nor could any injustice would result to them from the alternative plea being allowed and tried by the Court. It observed that even if the alternative plea had not been allowed to be raised in the suit filed by appellant, he would have been certainly entitled to raise that plea and seek eviction in a separate suit filed on the very same grounds."
14.8 It transpires that the alternative and inconsistent pleas are possible but at the stage of pleadings and not at the stage of Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
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14.9 Another facet of the case in hand is that the defendant has attempted to lead evidence beyond pleadings to harness the contention that there has been payment beyond the amount contracted. This legal aspect has been settled by judicial pronouncements in Duggi Veera Venkata Gopala Satyanarayana v.
Sakala Veera Raghavaiah and Anr. (1987) 1 SCC 254 , the observation made in the earlier decision in Hasmat Rai & Anr. v. Raghunath Prasad (1981) 3 SCC 103 were approved that any amount of proof offered without pleadings is generally of no relevance. A reference can also be made to Union of India v. Ibrahim Uddin and Anr. (2012) 8 SCC 148 and Para 15 of the judgment in Srinivas Raghavendrarao Desai (dead) by lrs. Vs. Kumar Vamanrao @ Alok and Ors., Civil appeal no(s). 7293-7294 of 2010 dated 04.03.2024.
14.10 In the light of above discussions, the defendant has failed to discharge its burden to prove that it is entitled for a sum Digitally signed by VINEETA GOYAL VINEETA Date:
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of Rs.67,09,173/- from the plaintiff hence, the prayer sought by the defendant for entitlement of Rs.67,09,193/- stands rejected.
14.11 Now coming to the claims of the plaintiff as envisaged in issue no. 1 for an amount of Rs.61,41,302/- as discussed above. Out of this claimed amount if the interest part is taken out the claim boils down to the following amounts:-
Particulars Amount
(a) Security deposit in LOI dated 03.01.2014 3,09,781/-
(b) Outstanding Payment for the work done 21,83,662/-
under LOI dated 25.06.2013
(c) Security deposit LOI dated 25.06.2013 21,87,944/-
(d) Outstanding for the work done for nursery 21,227/-
school
(e) Supply of Bricks 1,40,000/-
14.12 Undisputedly, the defendant did not deny about
outstanding security deposit of Rs.3,09,781/- from LOI
03.01.2014 and Rs. 21,87,944/- being security deposit LOI dated 25.06.2013 but claimed to have deducted for the reasons that the plaintiff did not complete the work and the work was got completed by the defendant by hiring other contractors and loss caused to the defendant. Besides this argument of having these amounts adjusted, the defendant has no right to retain these security deposits after the contract period is over. It is worth mentioning here that defendant has failed to prove that the plaintiff has committed breach of contracts and left the work in between or that it had to engage other contractors for completing the work or that the defendant has suffered losses. Therefore, these two amounts are payable to the plaintiff and the plaintiff is Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
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14.13 So far as the claim of Rs.1,40,000/- for supply of bricks to the defendant is concerned, the plaintiff has failed to lead any cogent and convincing evidence in respect of supply of bricks, therefore the said claim fails and the plaintiff is not entitled for the aforestated amount due to non-production of documentary evidence.
14.14 Now adverting to the outstanding claim of Rs.21,83,662/- being the payment for the work done under LOI dated 25.06.2013 for which the plaintiff claims that bill was submitted to the defendant but no payment has been made. The plaintiff in the plaint has averred that "they have completed the project so awarded, under LOI No.RRA/ respondent/ LOI/ Civil-003 dated 25.06.2013 on 30.07.2017 and raised their final bill on the defendant of value of Rs.21,83,662/- on 11.05.2017 despite the final bill was raised on 11.05.2017 for the work completed on 30.04.2017 but the defendant had failed to make the payment on said bill".
14.15 It is pertinent to mention at the stage of the argument Digitally signed by VINEETA GOYAL VINEETA Date: GOYAL 2024.11.26 17:28:27 +0530 CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 42 / 47
the plaintiff has claimed that the date mentioned above has inadvertently mentioned as 11.05.2017 whereas the correct date is 11.06.2017. It is argued that placed on record Ex. PW-1/5, which is letter dated 11.06.2017 by which the final bill Ex. PW-1/4 was submitted. At this juncture, it would be useful to mention that a mere look at the document Ex. PW-1/5 tendered in evidence reveals that it bears no signatures of the defendant or its representative in token of having received it. It is to be noted that though nothing was there in pleadings/ plaint about an email dated 29.06.2017 Ex. PW-1/6, it is worthwhile to note that this e-mail was brought on record by way of order dated 12.10.2021 on an application under Order VII Rule 14 of the Code of Civil Procedure, 1908 moved on behalf of plaintiff. Perusal of the said email shows that it is addressed to Chandan Lakhanpal and sent at email address [email protected]. The plaintiff in cross examination admitted that he knew that this person is not working with the defendant in the year 2017 but still the aforesaid e-mail was sent to him consisting of final bill. It is further to be noted that in further cross examination, the defendant confronted to the plaintiff witness PW-1 certain document such as PW1/DA being the 6th Running bill dated 10/06/2014, PW1/DB being the 7th Running bill, PW1/DC being the 4th Running bill and PW1/DD being the 5th Running bill to show that all these bills contained signatures of both the plaintiff and the signature of Chandan Lakhanpal being the representative of the project manager M/s RRA. The PW-1 was further cross examined who admitted that Digitally signed by VINEETA GOYAL VINEETA Date:
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the procedure adopted was that the bill was first given to Sh.
Chandan Lakhanpal who would verify it and forward it to the agency for payment and then the payment would be released.
14.16 Based on the discussion above, it is seen that for the alleged final bill no such procedure was adopted by the plaintiff as there is not even a shred of evidence to show that the final bill was submitted to the Project Manager (M/s RRA) or its agents whereas all other bills has been shown to be submitted with the due procedure. The alleged final bill has been evidenced through PW-1/5 and PW-1/4 which are the documents can be self- supporting pieces of evidence. Similarly, the alleged e-mail sent at [email protected] was admittedly sent to an ex- employee of the project manager which is futility of exercise as the defendant never could have accessed that e-mail, whereas subsequently the plaintiff claims that reminders have been sent to the defendant on e-mail ID [email protected], [email protected]. As per LOI, the work of the plaintiff was to be certified and checked by the Project Manager and it is seen from the documents PW-1/DA to PW-1/DD that at number of occasions, the representative of the project manager Chandan Lakhanpal has reduced the claims of running bills. The plaintiff by not following the procedure adopted between the parties in respect of the final bill has brought it under the clouds of doubt. Further, PW-1, in cross examination has admitted that the Project Manager issued a Certificate of completion when the final bill was Digitally signed by VINEETA GOYAL VINEETA Date:
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given and it is also admitted that the plaintiff does not possess any copy of bill containing acknowledgment of the Project Manager, the best evidence has not been adduced. In absence of credible evidence, the case of the plaintiff fails in respect of this final bill both on account that the certification of the Project Manager regarding work done is missing and also there is no other credible evidence where it could be shown that the defendant has admitted the work done. Thus, this part of the outstanding claimed at Rs. 21,83,662/- fails.
14.17 The plaintiff thus, is successful in proving the case that he is entitled to receive an amount of Rs.3,09,781 towards security deposit in LOI dated 03.01.2014, Rs.21,87,944/- towards security deposit in LOI dated 25.06.2013 and Rs. 21,227/- towards outstanding for the work done for nursery school from defendant. In summation, the plaintiff is entitled to total amount of Rs.25,18,952/- ( Rs.3,09,781 + Rs.21,87,944/- + 21,227/-) from the defendant. The issue no.1 is accordingly adjudicated partly in favour of plaintiff.
14.18 As discussed in proceeding paragraphs, the defendant has failed to discharge its onus, therefore, the defendant is not entitled for counter-claim as pleaded, accordingly, issue no.3 is decided in favour of plaintiff and against the defendant.
Digitally
signed by
VINEETA
VINEETA GOYAL
GOYAL Date:
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Issue no.2 :
15 Further, the plaintiff has claimed pendente lite and
future interest @ 18% p.a. In the considered opinion of this Court, the same is not reasonable. The stipulation of charging such higher rate of interest has not been proved by the plaintiff. Section 34 (1) of Code of Civil Procedure, 1908 provides that where and in so far as decree is for the payment of money, the Court may, in the decree / order interest at such rate as the Court deems reasonable to be paid on the principal amount adjudged, from the date of the suit to the date of decree, in addition to any interest, adjudge on such principal sum for any period prior to the institution of the suit, (with further interest at such rate not exceeding 6% per annum as the Court deems reasonable on such reasonable sum), from the date of decree to the date of payment, or to such earlier date as the Court deems fit.
15.1 As discussed in issue no.1, the plaintiff has remained successful to prove issue no.1 partly, accordingly, the plaintiff is also entitled to interest @ 6% p.a. on the awarded amount i.e. Rs.25,18,952/- from the date of filing of the suit till the date of its realization. Accordingly, the issue no.2 is decided in favour of plaintiff.
Issue no.4 :
16 Since the defendant has remained unsuccessful to prove issue no.3, accordingly this issue is also decided against the Digitally signed by VINEETA GOYAL VINEETA Date:
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defendant.
Relief :
17 In view of above discussion, the suit of the plaintiff
bearing no. 64/2018 is partly decreed for a sum of Rs.25,18,952/- (Rupees Twenty Five Lakhs Eighteen Thousand Nine Hundred and Fifty Two only) along-with pendente lite and future simple interest @ 6% p.a. from the date of institution of the suit till the date of its realization against defendant, whereas counter claim bearing No.06/2019 stands dismissed.
18 Keeping in view provisions as contained in Section 35 and Section 35A of CPC, more particularly in the given facts of the case, on the principal of equity, no order as to costs and both the parties shall bear their own costs.
Decree sheet be drawn up accordingly.
File be consigned to record room after due compliance. Digitally signed by VINEETA VINEETA GOYAL GOYAL Date:
2024.11.26 17:29:10 +0530 Pronounced in the open Court (VINEETA GOYAL) on this 26th November, 2024 District Judge (Commercial-03) Patiala House, New Delhi CS(COMM) 64/18 & CC No.06/19 Tulip Techno Engineers v. M/s. R.D. Varma & Co. (P) Ltd. Page No. 47 / 47