Delhi District Court
Puneet Seth vs Imperia Structures Ltd on 21 October, 2024
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 - SOUTH
EAST DISTRICT, SAKET COURTS, NEW DELHI.
IN THE MATTER OF:
CS (COMM) No. 79/2019
PUNEET SETH, PROPRIETOR
M/s Faalcon (through its Authorized representative)
Sh. Apurva Gahlot
Registered office at :
N-75, Mayfield Garden, Sector 51
Gurugram - 122018 ..... Plaintiff
VS.
1. IMPERIA STRUCTURES LIMITED
A-25, Mohan Co-operative Industrial Estate
Mathura Road, New Delhi-110044
2. HARPREET SINGH BATRA
Managing Director
Imperia Structures Limited
B-9, Chirag Enclave, Greater Kailash-I
New Delhi-110048.
Also at :
A-25, Mohan Co-operative Industrial Estate
Mathura Road, New Delhi-110044 ....Defendants
Date of Institution : 08.04.2019
Date of Arguments : 16.10.2024
Date of Judgment : 21.10.2024
CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 1 of 26
JUDGMENT
1. Vide this judgment, I shall decide the suit for recovery of amount Rs. 22,98,768/- alongwith pendent lite and future interest @ 18% per annum till realization filed by the plaintiff against the defendant.
2. The brief facts of the case as per plaint are that the plaintiff is a highly reputed construction work firm and defendant company dealing in business of real estate construction builders. The defendant no.1 company through its Managing Director Defendant no.2 and Director Projects approached the plaintiff for the purpose of doing the internal finishing work of their project i.e. IT Tower at Plot No. 44-45, Knowledge Park-V, Greater Noida, UP. The defendant no. 1 started dealing with the plaintiff firm vide work order dated 08.10.2015 to the tune of Rs. 6,85,48,820/- wherein internal finishing work of the five floors was awarded to the plaintiff firm however, to the utter shock of plaintiff, defendant no.1 restricted it to first two floors and allocated the work of upper three floors to third party without intimation to the plaintiff.
3. The plaintiff firm during the course of business used to raise bills from time to time for which the defendant no.1 regularly used to make delayed part payments. The plaintiff firm ignored all this just to maintain cordial relationship and focused on work assigned to them. The defendant no.1 delayed the CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 2 of 26 payment and therefore, the plaintiff time to time intimated the defendants on various emails for the problems being faced by the plaintiff firm at the site of the defendants.
4. Defendants no. 2, 3 and 6 started avoiding the plaintiff firm representations and defendant nos. 2 and 6 gave excuses that very soon they will make the payment against the outstanding amount however, defendant no. 1 through their authorized signatory vide email dated 13.04.2016 wrongfully terminated the contract by putting the entire blame on the plaintiff firm and appointed a third party to complete the remaining work, however, despite request, when defendant no.1 refused to reinstate the contract the plaintiff firm requested defendant to settle the accounts and make the pending payments.
5. The plaintiff presented defendant no.1 with duly certified bill dated 02.06.2016 amounting to Rs. 23,95,368/-. Through, an MOU dated 22.09.2016, it was mutually decided by both the parties that work amounting to Rs. 8,10,000/- was still pending, thus, plaintiff bonafidely agreed to waive off the amount and requested defendant no.1 company to pay the balance amount of Rs. 15,85,368/-. Defendant no.1 company returned the certified bill however, claimed to receive some amount from plaintiff after deducting ESI and Debit Notes against the MOU and work order dated 08.10.2015. Plaintiff waited and persuaded for balance amount and also demanded CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 3 of 26 WCT certificate for an amount of Rs. 1,55,495/- (the tax being deducted by the defendants for the earlier payments).
6. The plaintiff when not received any payment, sent a legal notice dated 20.12.2016 calling upon them to pay the Principal outstanding amount of Rs. 15,85,368/- along with interest. Despite service, defendants neither paid the money nor filed reply to the legal notice. The defendants neither remit the WCT amount of Rs. 1,55,495/- to the concerned authorities nor issued the WCT certificate for an amount of Rs. 1,55,495/- despite numerous reminders. The plaintiff is also entitled to received total amount of Rs. 22,98,768/- for the outstanding principal amount along with interest @ 18% per annum from the date of its commencement till its realization (Calculated Principal amount + Interest @ 18% per annum from 01.10.2016 till 31.03.2019, hence Rs. 15,85,368 + Rs. 7,13,400= Rs. 22,98,768/-). The complainant thereafter filed the present suit. Written Statement :
7. In written statement, it is stated that defendant no.1 has appointed M/s Samanvay Global Inc. to execute the internal finishing work which was delegated to the plaintiff. The total cost of the entire project was Rs. 6,85,48,820/-, and the defendant no. 1 made an advance payment of Rs. 20 Lakhs to M/s Samanvay Global Inc. and Rs. 5 Lakhs to the plaintiff. As per the work order dated 08.10.2015, defendant no. 1 had CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 4 of 26 assigned work of two floors to the plaintiff and further work to the plaintiff on successful completion of the work. However, due to the slow progress and deficiency of service on the part of the plaintiff, the defendant no. 1 was constrained to terminate the work order dated 08.10.2015 vide termination letter dated 13.06.2016, and the answering defendant was constrained to award the said work to a third party contractor due to which defendant no. 1 suffered huge loss.
8. The plaintiff not only provided deficient services but also not paid ESI as well as PF dues which was required to be paid in terms of work order owing to which defendant no.1 has to make the payment of Rs. 14,87,721/-. The defendant no.1 had to incur a loss of Rs. 5,96,273/-.
9. In parawise reply it is stated that the proprietorship firm can only institute legal proceedings through its proprietor alone or through its Attorney duly authorized by way of a power of attorney and only through authorization letter through its Manager. It is also denied that the finishing work in respect to five floors was allotted to the plaintiff. The work allocated to the plaintiff was in respect of two floors and further allocation was dependent upon the quality of the work done by the plaintiff. It is stated that due to deficiency on the part of the plaintiff and not doing the work the defendant no.1 terminated contract in consonance with the clause 29 of the work order and appointed a CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 5 of 26 third party to complete the remaining work. It is also denied that plaintiff presented duly certified bill dated 02.06.2016 of Rs. 23,95,368/- to the defendant. The documents relied upon by the plaintiff in furtherance of its claim is an internal document of the plaintiff and does not bear the seal/stamp of the acknowledgment of the defendant no.1 It is also denied that it was mutually decided between the parties that the work amounting to Rs. 8,10,000/- was still pending. A bare perusal of MOU relied upon by the plaintiff makes it clear that M/s Standard Pacific Construction was to complete the balance work as per Annexure I and II in the presence of the defendant. As per Annexure-IV, the defendant has to make the payment of MOU to M/s Standard Pacific Construction and not to the plaintiff. The MOU also did not disclose any request to release the balance amount. The defendant no. 1 also denied about the factum of demand of WCT to be issued by the defendant in favour of the plaintiff. The defendant denied being served with any notice dated 20.12.2016. It is also stated that registered office of defendant no.1 lies within the territorial jurisdiction of this Court however, the work orders were denied by the plaintiff from the registered office of the defendant. Thus, the present suit lacks necessary territorial jurisdiction and the instant suit is liable to be dismissed.
Replication :
CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 6 of 26
10. In replication, the plaintiff reiterated its stand and denied the defence of the defendant. It is stated that M/s Samanvay Global Inc. is the sister concern of M/s Faalcon and its proprietor was the wife of the plaintiff. The said firm already closed during the year 2013-14 though the present business transaction started between the plaintiff and the defendant in the year 2015. The plaintiff already filed the duly certified bill dt. 02.06.2016 which was duly acknowledged by the defendant though its representative. The defendant not made any advance payment of Rs. 20 Lacs to M/s Samanvay Global Inc. The defendant has given the finishing work of five floors, however, the defendant shockingly restricted into two floors and allocated the work of upper three floors to third party without intimating the plaintiff. The plaintiff is not liable to make any payment of Rs. 5,96,273/-. It is also stated that the defendant's registered office is within the territorial jurisdiction of this court from where the plaintiff received the purchase order.
11. In affidavit of admission denial of documents filed by the plaintiff, the defendant admitted work order dt. 08.10.2015, email dt. 13.04.2016 and other emails from pg. no. 29 to 44, however, denied bill dt. 02.06.2016 (pg. no. 45 to 83), MOU dt. 22.09.2016 and legal notice dt. 20.12.2016. No affidavit of admission denial filed by the plaintiff as defendant did not file any document alongwith the written statement.
CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 7 of 26 Though in one of the order sheet, it is found mentioned that plaintiff also seeks to file affidavit of admission denial of documents.
12. On completion of pleadings, vide order dt.
05.11.2022, following issues were framed :
(1) Whether the plaintiff is entitled for recovery of Rs. 22,98,768/-agaisnt the defendants? OPP (2) Whether the plaintiff is entitled for pendetelite and furture interest @ 18% p.a? OPP (3) Whether the court has the necessary jurisdiction to try the present suit or not? OPD (4) Whether the present suit is barred by limitation? OPD (5) Whether the plaintiff was ever assigned / allocated any work other than with respect to 2 floors? OPD (6) Whether the plaintiff has rendered deficient and sub-
standard services causing the defendant to incur huge losses?OPD (7) Relief.
13. For recording of evidence, the Local Commissioner was appointed.
14. During evidence, the plaintiff examined PW1 Apurva Gahlot and PW2 Puneet Seth. The defendant examined DW1 Mandeep Kumar and DW2 Manish Gupta.
Summary of Evidence :
CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 8 of 26
15. PW1 Apurva Gahlot tendered his affidavit of evidence Ex.PW1/A and in cross-examination stated that he was Manager of Faalcon. He further stated that there were unforeseable problem of delayed payment on the part of the defendant. He stated that plaintiff firm was responsible for ESI/EPF compliances. He stated that as per work order dt. 08.10.2015, quantum of work is mentioned not the number of floors. He further stated that he was also Manager in Samanvay Global Inc.
16. PW2 Puneet Seth also tendered his affidavit of evidence Ex.PW2/1 and in cross-examination stated that he do not know the purpose of MOU dt. 22.09.2016. He stated that he do not remember why the MOU dt. 22.09.2016 do not bears his signature, volunteered might busy somewhere. He stated that he cannot tell how much payment received till date and it is a matter of record. There is no specific clause for awarding of work of five floors, however, bill of quantity in clause 2 of the work order, the area specified covers five floors. Unforeseable problems includes not providing of clean environment/ place to work sometimes it was cleared by the plaintiff at his own cost. The defendant have given a security cheque to Orient Bell for purchase of tile, however, defendant failed to own of their obligations and as a result, M/s Orient Bell filed case against plaintiff.
CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 9 of 26
17. DW1 Mandeep Kumar tendered his affidavit of evidence Ex.DW1/1 and in cross-examination stated that currently posted as General Manager of defendant company. He stated that he do not remember whether there were any written complaints/ intimations made to the plaintiff firm regarding shortage of labours, supervisors etc. He stated that work order dt. 08.10.2015 has been assigned to M/s Faalcon through M/s Samanvay Global Inc. The terms and conditions of the work order Ex.DW1/PW1/12 (Colly) is binding on both plaintiffs as well as defendant. He can bring the bank statement of advance payment of Rs. 20 Lacs to M/s Samanvay Global Inc. He stated that he do not remember of any letter of intent dt. 01.06.2015 to M/s Samanvay Global Inc., however, given the work order to M/s Faalcon through M/s Samanvay Global Inc. He stated that the original letter of intent dt. 01.06.2015 (Ex.DW1/PW1/13) is correct. He stated that it is also correct that there is mention payment of Rs. One Lac as advance to M/s Samanvay Global Inc. He stated that defendant might have paid an advance of Rs. One Lac as well as advance money of Rs. 20 Lacs. He stated that he cannot tell whether the defendant paid Rs. 2 Lacs vide two cheques of Rs. One Lac each dt. 01.07.2015 and 24.07.2015, volunteered same might be in the knowledge of accounts department. On being confronted with 5 th RA bill dt. 02.06.2016 [Ex.DW1/PW1/14 (colly)] in which on the second last page, CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 10 of 26 there is mention of Rs. 2 Lacs, however, the witness denied that the fact of giving advance payment of Rs. 2 lacs to M/s Samanvay Global Inc. as the said document is not signed on each and every page. He stated that it is correct that they have not filed any document as proof against the payment of Rs. 14,87,721/- to the ESI and PF dues.
18. In further cross-examination on 09.01.2023, he stated that he do not brought any documents, however brought photocopies of cheques and bank statement of defendant no.1 Mark DW1/A-1 but there is no document showing payment of Rs. 20 Lacs to M/s Samanvay Global Inc. This witness also accepted the emails [Ex.DW1/PW1/15 (colly)] exchanged also with M/s Orient Bell Tiles. This witness also confirmed the signatures of Mehar Alam on behalf of the defendant no. 1 company on measurement book dt. 19.05.2016 [Ex.DW1/PW1/16 (colly)]. He also admitted the signatures of Jaya on behalf of defendant no. 1. The third party Standard Pacific Construction/ Satish Kumar Singh was alloted job work after termination of work order of the plaintiff. The plaintiff is not consulted before assigning the remaining project work, however, defendant no. 1 company intimated the plaintiff verbally about the non-performance at project site. This witness admitted the signatures of Apurva Gahlot at point A, signature of Satish Kumr Singh at Point B and signature of Mehar Alam at CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 11 of 26 Point C of Ex.PW1/9 (Colly). He further stated that he do not know whether an amount of Rs. 1.40 Lacs for work contract tax (WCT) submitted by defendant no. 1, volunteered it might be in the knowledge of accounts department. This witness admitted the emails [Ex.DW1/PW1/17 (colly)]. He further stated that it is correct that he had not filed any emails or letter being issued to the plaintiff and it confirmed to the defendant no. 1 company or its officers. He also not brought the proof regarding payment of Rs. 14,87,721/- paid by defendant no. 1 to the concerned department of ESI and PF. He also not brought the proof of payment of Rs. 20 Lacs, however, brought the bank statement showing two entries of Rs. 94,000/- after deduction of TDS. He denied suggestion that Rs. 2 Lacs given in advance to M/s Samanvay Global Inc. and not Rs. 20 Lacs. He denied suggestion that plaintiff admitted Rs. 2 Lacs given as advance to M/s Samanvay Global Inc. and not Rs. 20 Lacs.
19. DW2 Manish Gupta tendered his affidavit of evidence Ex.DW2/1 and in cross-examination stated that he was working with defendant company since 01.09.2022 in the capacity of Manager (Legal), however, not part of the business transaction between defendant company and plaintiff having no personal knowledge. He also have no personal knowledge as to process of commission of RA bill by the plaintiff and its firm to the defendant no. 1 company and also do not know who signed CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 12 of 26 and verified the said RA bills on behalf of defendant no. 1 company. He stated that it is correct that the terms and conditions of work order dt. 08.10.2015 are binding on both defendant no. 1 and plaintiff. He stated that it is correct that the letter of intent dt. 01.06.2015 [Ex.DW1/PW1/13 (Colly)] were given by defendant no. 1 company to M/s Samanvay Global Inc. He stated that he had not filed the proof of Rs. 20 Lacs of advance payment of Rs. 20 Lacs and also not filed the proof that they have paid a sum of Rs. 14,87,721/- to the ESI and PF department. It is correct that as per letter of intent dt. 01.06.2015, there is a mention of Rs. One Lac advance token money.
20. DW2 also stated that he has not brought the documents, however, brought the certain documents with regard to payment to Faalcon [Mark DW1/A.1 (Colly)], however, the same is not showing the payment of Rs. 20 Lacs to M/s Samanvay Global Inc. He do not know about the business transaction between defendant no.1 and M/s Orient Bell Tiles, however, accepted the emails between defendant no.1, M/s Orient Bell Tiles and Puneet Seth [Ex.PW1/15]. He also stated that he do not know whether defendant no.1 deposited work contract tax (WCT) of Rs. 1.40 Lacs, however, it must be in the knowledge of account department. This witness also admitted the emails [Ex.DW1/PW1/17 (Colly)]. He stated that he had not brought any documentary evidence regarding the huge losses CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 13 of 26 suffered by defendant no. 1 due to deficiency of work by the plaintiff.
Material exhibits :
21. Ex.PW1/1 is the affidavit of evidence; Ex.PW1/2 is the copy of GST TIN; Ex.PW1/3 is the Original copy of Special Power of Attorney; Ex.PW1/4 is the copy of company Master data of the defendant no. 1; Ex.PW1/5 is the copy of work order No. ISL/IT Tower-Cyber/Interior Finish/013 dt. 08.10.2015; Ex.PW1/6 is the copy of emails dt. 13.04.2016; Ex.PW1/7 (Colly) are the copies of various emails exchanged between the parties; Ex.PW1/8 (OSR) is the copy of duly certified bill dt. 02.06.2016; Ex.PW1/9 (OSR) is the copy of Memorandum of Understanding dt. 22.09.2016; Ex.PW1/10 (Colly) is the original office copy of legal notice dt. 20.12.2016 alongwith original postal receipts and internet tracking report; Ex.PW1/11 is the certificate U/s 65B of Indian Evidence Act.
22. Ex.PW2/1 is the affidavit of evidence of PW-2, Ex.DW1/1 is the affidavit of evidence of DW-1 Mandeep Kumar, Ex.DW2/1 is the affidavit of evidence of DW-2 Manish Kumar.
Documents put in cross examination of DW-1. Ex.DW1/PW1/12 work order dated 08.10.2015 (already
Ex.PW1/5), Ex.DW1/PW1/13 letter of intent dated 01.06.2015, Ex.DW1/PW1/14 (colly.) is the fifth RA bill (already Ex.PW1/8), Ex.DW1/PW1/15 (colly.) are the emails exchanged, CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 14 of 26 Ex.DW1/PW1/16 measurement book Ex.DW1/PW1/17, email exchanged (already Ex.PW1/7). Ex.DW1/A1 bank statements and cheque book, Ex.DW1/PW1/9 is the MOU dated 22.09.2016 (already Ex.PW1/9).
Submissions of the counsels :
23. Ld. Counsel for plaintiff submitted that in terms of work order dt. 08.10.2015, the plaintiff started their work in deligent and focussed manner, however, the defendant used to delay in making the payments and the part payments were made after various demands. The defendant no. 1 vide email dt. 13.04.2016 wrongfully terminated the contract and appointed third party. The plaintiff presented duly certified bill dt. 02.06.2016 of Rs. 23,95,368/-. Through Memorandum of Understanding dt. 22.09.2016, it was mutually decided by both the parties that the work amounting to Rs. 8,10,000/- was still pending, therefore, requested defendant no. 1 company to pay balance amount of Rs. 15,85,368/-. The defendant unable to place the record of payments of Rs. 20 Lacs paid to M/s Samanvay Global Inc., however, the defendant no. 1 only paid Rs. 2 Lacs to the plaintiff through 5 th RA bill dt. 02.06.2016 [Ex.DW1//PW1/14 (Colly)]. The defendant company never issued any work order to M/s Samanvay Global Inc. but issued a letter of intent dt. 01.06.2015 which is admitted in cross- examination by DW1 and DW2. The defendant also could not CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 15 of 26 prove the payments of Rs. 14,87,721/- to the concerned department of ESI & PF. DW1 in cross-examination dt. 22.12.2022 admitted that the RA bill firstly submitted at the site and after verification from Site Engineer sent to head office for signature of Project Head Rajiv Sood. Thereafter, on further cross examination on 09.01.2023, he was confronted with his 5 th RA bill [Ex.DW1/PW1/14(Colly)] on which he had admitted the signature of Jaya who received it on 03.06.2016. DW1 has also admitted the emails exchanged between defendant no. 1, M/s Orient Bell Tiles and plaintiff [Ex.DW1/PW1/15(colly)].
24. Ld. Counsel for plaintiff further submitted that the defendant's contentions regarding the unsigned 5th RA bill enclosed at page no. 101 of the LC report which is denied in affidavit of admission denial of documents is baseless and rejected. After submission of 5th RA bill, the defendant no. 1 company instead of clearing the bill transmitted the abovesaid bill after alteration via email dt. 11.02.2019 sent solely by defendant's company to the plaintiff's firm. The defendant's plea that they have overpaid an excess amount of Rs. 8,13,800/- is false and concocted and created another misleading story which is not part of the pleadings in their written statement. The document in question i.e. 5th RA Bill at page no. 101 of LC report was provided by the defendant themselves. Furthermore, the document relied by the defendant for their claim of over CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 16 of 26 payments contains completely erroneous calculation. The claim of excess amount of Rs. 8,13,800/- are inadmissible as defendant already explicitly denied the 5th RA bill on page no. 101 of LC report in their affidavit of admission denial of documents dt. 05.11.2022. The defendants are claiming loss of Rs. 14,87,713/-, however, only deducting Rs. 6,33,687/- from ESI & PF in the 5 th RA bill found on page no. 101. The calculations in 5 th RA bill are erroneous as defendant is deducting Rs. 24,539/- for 2% TDS and Rs. 45,177/- for 1% TDS. All submissions of the defendant in additional written submissions are admissible being not part of the pleadings and not put in the cross-examination. The defendant cannot claim anything beyond pleadings. (Relied upon Bacchaj Nahar Vs. Nilima Mandal & Anr. Civil Appeal No. 5798 of 2008, Supreme Court; Damodhar Narayan Sawale (Dead) through LRs Vs. Tejrao Bajirao Mhaske, SLP No. 923 of 2023; Kashi Nath (Dead) through LRs Vs. Jagannath, 2003 8 SCC 740; M.N. Saji Vs. K.R. Krishna Kumar, RSA No. 186/2022, Hon'ble Kerala High Court and Shiv Shankara & Anr. Vs. H.P. Vedavyasa Char, 2023 SCC Online SC 358)
25. Ld. Counsel for defendant submitted that there is no compliance mandatory provision of U/s 12A of Commercial Courts Act. The purported RA bill no. 5 at page no. 101 of LC report has neither been proven nor established in accordance with law of evidence. The said RA bill No. 5 is unsigned having CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 17 of 26 no stamp/ mark, on the other hand, it is showing that plaintiff has received the excess amount of Rs. 8,13,800/-. The said RA bill does not make the mention of Rs. 7 Lacs as advance by the defendant which is admitted at page 105 of LC report. Furthermore, the plaintiff is required demonstrate the work carried out and the claim do not lying merely on the basis of the bill. As per the work order, the plaintiff is to complete the work within 7 months, he unable to complete the said work. The plaintiff even not make ESI and PF compliance and the defendant ma no.3de a payment of Rs. 14,87,721/-. The excess payment also admitted by the plaintiff, as per page 106 of LC report.
26. This court has no territorial jurisdiction as the work order has been executed outside the jurisdiction of this court and the work allegedly done outside the jurisdiction of this court. Furthermore, the suit is barred by limitation. The work is done prior to 31.03.2016 and the present suit was filed on 06.04.2019, hence, barred by limitation. The plaintiff was granted the work of two floors only which is clear from the work order dt. 08.10.2015. The plaintiff unable to complete the work within 7 months, furthermore, the work was sub-standard and there is deficiency in service. The plaintiff thereby caused loss to the defendant.
27. Ld. Counsel for defendant further submitted that the CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 18 of 26 bill at page no. 101 is not signed by either parties and even otherwise, the said bill showing the negative amount of Rs. 8,13,800/-. The page no. 105 shows payment of Rs. 7 Lacs from the defendant which is not reflected in the said bill. The plaintiff admittedly issued debit note of Rs. 14,40,580/- which is also not adjusted in the said bill. The plaintiff also received the other payments which is also not adjusted. On the other hand, the document shows that the plaintiff had to make the excess payment to the defendant. Ld. Counsel submitted that the plaintiff unable to prove its case, hence, liable to be dismissed.
28. Written submissions also filed by both the parties.
29. Arguments heard. Record perused.
30. My issue wise findings are as under :
Issue No. (1) Whether the plaintiff is entitled for recovery of Rs. 22,98,768/- against the defendants? OPP Issue no. (2) Whether the plaintiff is entitled for pendetelite and future interest @ 18% p.a? OPP Issue No. (5) Whether the plaintiff was ever assigned/allocated any work other than with respect to 2 floors? OPD
31. The case of the plaintiff is that the defendant vide work order dated 08.10.2015 (Ex.PW1/5) granted internal finishing work of the five floors for Rs.6,85,48820/- to the defendant, however, in the course of the business the defendant delayed in making part payment and finally vide email dated CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 19 of 26 13.04.2016 wrongfully terminated the contract and appointed another contractor to complete the remaining work. The case of the plaintiff is that the plaintiff was provided the work order for five floors, however, there is nothing in the work order the said work is for the five floors. PW-1 in cross examination stated that there is mentioning of quantum of work in the work order but number of floors are not mentioned. PW-2 however, in cross examination stated that as per record bill of quantity in clause 2 of the work order specified is for five floors, however, unable to substantiate said fact through cross examination of defendant evidence. The plaintiff unable to show that he was provided the work order for all the five floors.
32. Admittedly as per the case of the plaintiff, the plaintiff was performing the work in terms of the work order, however, the defendant delayed in making part payments but the plaintiff have not mentioned details of delay either in the pleadings or in the evidence. The plaintiff even not filed the ledger statement to show how much payment he has received from the defendant.
33. The plaintiff for substantiating its case relied upon work order (Ex.PW1/5), the e-mails exchanged between the parties (Ex.PW1/7) and the copy of the duly certified bill dated 02.06.2016 (Ex.PW1/8). The entire case of the plaintiff is dependent upon the work order Ex.PW1/5 and the fifth bill CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 20 of 26 (Ex.PW1/8). PW1/5 though stated to be the work order, however, it is a fifth and final bill showing the plaintiff is entitled to receive a total sum of Rs.23,95,368/-. This bill also shows that the defendant has given an excess payment of Rs.8,62,460/-. As per Ex.PW1/8 there is a letter showing the fifth and final bill amount of Rs.22,26,439/- and alongwith this letter there are the calculation sheets of work done, however, the plaintiff had not explained in the pleadings or in evidence the calculations sheets. There is nothing in the pleadings or in evidence showing the basis of which documents, the plaintiff arrived at the total payment of Rs.23,95,368/- or Rs.22,26,439/-.
34. Now it is pertinent to see this 5 th and final RA bill (Ex.PW1/5, running from page no.22 to 25). This RA bill is unsigned and a blank RA bill showing both the payments i.e. what is to be claimed from the defendant and also the excess payment made by the defendant. It is the duty of the plaintiff to explain the excess payment of Rs.8,62,460/- shown in Ex.PW1/5 is false and frivolous, however, the plaintiff not pleaded this fact in the plaint nor in the evidence. The entire case of the plaintiff therefore becomes suspect.
35. The plaintiff also relied upon letter Ex.PW1/8 for a total amount due of Rs.22,26,439/-, however, there is no bill attached with the said letter showing the bill amount of Rs.22,26,445/-. The plaintiff alongwith this Ex.PW1/8 annexed CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 21 of 26 some documents but not explained those documents. Those documents do not in any manner shows that the total amount due is Rs.22,26,445/-.
During cross examination, the DW-1 was confronted with the work order dated 08.10.2015
(Ex.DW1/PW1/12 (colly.), however not filed the said work order alongwith the plaint but the said work order is not under dispute. The plaintiff also confronted the DW-1 with the measurement sheet Ex.DW1/PW1/16, these sheets are also the part of Ex.PW1/8 (colly.). The plaintiff also confronted DW-1 in cross examination with the letter dated 02.06.2016, alongwith bill of Rs.23,95,368/-, also showing the excess payment of Rs.8,13,800/- with a sheet showing the Rs.7,00,000/- excess payment (Ex.DW1/PW1/14 colly., from page no.100 to 106 of the LC report). It is to be noted that the this document is not with the LC report, however, lying in the court file and therefore, during arguments, both the counsels have also filed the copy of the same, which is placed on the LC report.
36. The plaintiff during his evidence with the plaint relied upon Ex.PW1/5, however, nomenclatured it as work order whereas it is a fifth and final RA bill showing the total payment claimed Rs.23,95,368/- and also showing the excess payment received Rs.8,62,460/-. However, the plaintiff in cross examination confronted DW-1 with the bill showing total CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 22 of 26 amount of Rs.23,95,368/- and the excess amount received Rs.8,13,800/- (Ex.DW1/PW1/14). The plaintiff neither able to show from the documents how he arrived at a total figure of Rs.23,95,368/- nor able to explain the excess payments received from the defendant i.e. at Ex.PW1/5 showing Rs.8,62,460/- and with DW-1/PW1/14 (colly., page no.101) showing the figure of excess payment of Rs.8,13,800/-. The plaintiff unable to substantiate its case regarding his claim. The documents of the plaintiff itself shows that there is an excess payment made by the defendant which were not explained by the plaintiff either in the pleadings or in the evidence. It is also to be noted that the plaintiff vide letter dated 02.06.2016 both Ex.PW1/8 as well as Ex.DW1/P no.3W1/14 (colly, page no.100) for a total sum of Rs.22,26,445/-. The plaintiff unable to substantiate the claim amounts required to be paid by the defendant through pleadings or in evidence.
37. The defendant also raise the plea that it has paid a sum of Rs.20,00,000/- to M/S Samanvway Global Firm of the wife of the plaintiff company and that he had made a payment of Rs.14,87,721/- to ESI and PF, however, not able to prove the said defence. The DW-1 has also admitted that e-mails have exchanged between the DW-1 and the M/s Orien Bell, however, not discharged the liability towards M/s Orien Bell . The defendant also not able to prove its defence, however, this in no CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 23 of 26 manner relieves the plaintiff to prove its case through cogent evidence.
38. The plaintiff is required to prove its case through specific pleadings substantiated through the documents. The plaintiff to prove its case relied upon the bill fifth RA bill annexed with the plaint Ex.PW1/5 showing the total amount of Rs.23,95,368/-, however, the said bill is also showing that the plaintiff has received an excess payment of Rs.8,62,460/-. The plaintiff also relied upon the certified bill/ letter dated 02.06.2016 (Ex.PW1/8) showing the liability towards the defendant for a sum of Rs.22,26,445/-, however, there is no pleading or evidence regarding the deviation in the bill Ex.PW1/5 and Ex.PW1/8. The plaintiff brought another fifth RA bill Ex.DW1/PW1/14 (colly) showing the plaint towards defendant of Rs.23,95,368/-, however, it is also showing to have received excess payment of Rs.8,13,800/-. The plaintiff not explained the deviations in all the three exhibits i.e. Ex.PW1/5, Ex.PW1/8 and Ex.DW1/PW1/14 in pleadings or in evidence.
Furthermore, mere exhibition of bill is not sufficient unless accompanied with the proper documents and calculations on the basis of which, the plaintiff arrives at the total amount of claim of Rs.23,95,368/- or Rs.22,26,445/-. The measurement sheet is not also corroborated through the proper calculation. Furthermore, no ledger statement is filed neither the previous CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 24 of 26 bills filed to distinguish the works done prior to the fifth/ final bill and through the fifth and final bill. Therefore, in these circumstances, plaintiff not able to prove even from the perspective of the preponderance of probability despite the fact that defendant not able to prove its defence. The issue nos.1, 2, & 5 is accordingly decided against the plaintiff and in favour of the defendant.
Issue no. (3) Whether the court has the necessary jurisdiction to try the present suit or not? OPD
39. Ld. Counsel for the defendant submits that the work is done at greater Noida, U.P, therefore, this court has no jurisdiction. Admittedly that the registered office of the defendant is within the jurisdiction of this court. The present suit is for recovery of the amount for the work done, the part of cause of action also arose within the jurisdiction of this court, hence, this court has territorial jurisdiction to entertain the present case. Accordingly, issue no.3 is decided in favour of the plaintiff and against the defendant.
Issue no. (4) Whether the present suit is barred by limitation? OPD
40. As far as the question of limitation, the present suit is filed on 08.04.2019 and the letter dated 02.06.2016 (Ex.PW1/8) showing the total bill amount is Rs.22,26,445/- and bill dated 02.06.2016 showing total amount of Rs.23,95,368/-
CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 25 of 26 (Ex.PW1/5), therefore, the present suit is filed within limitation. Accordingly, the issue no.4 is decided in favour of the plaintiff and against the defendant.
Issue No. (6) Whether the plaintiff has rendered deficient and sub-standard services causing the defendant to incur huge losses? OPD
41. The onus of this issue is on the defendant, the defendant alongwith the written statement do not file any document to show that the plaintiff had rendered deficient and substandard services. The defendant unable to substantiate the said fact from the evidence on record. Accordingly, the issue no.6 is decided in favour of the plaintiff and against the defendant.
RELIEF
42. In view of the above discussions, plaintiff is not entitled to any relief. Hence, the present suit stands dismissed. The present suit is disposed off accordingly.
File be consigned to record room after due compliance.
Digitally signedAJAY by AJAY KUMAR JAIN KUMAR Date:
JAIN 2024.10.21 Announced in the open court 16:46:29 +0530 on 21st October, 2024 (Ajay Kumar Jain) District Judge, Comm-03 South-East, Saket Courts, CS (COMM) No. 79/2019 Puneet Seth Vs. Imperia Structures Limited & Anr. dt. 21.10.2024 pg. no. 26 of 26