Delhi District Court
Bbr (India) Pvt. Ltd vs Satilila Charitable Society on 13 February, 2017
IN THE COURT OF GAURAV RAO, SENIOR CIVIL JUDGE
CUM RENT CONTROLLER ( SOUTH EAST), DISTRICT
COURTS, SAKET, NEW DELHI
CS No: 51790/2016 (Old no. 156/15)
CNR No.: DLSE030010552015
BBR (India) Pvt. Ltd.
C63, Ground Floor,
Okhla Indl. Area Phase I,
New Delhi - 110020. .....Plaintiff
Versus
Satilila Charitable Society
A14, Kailash Colony,
Near Metro Station,
New Delhi - 110048. ....Defendant
Date of institution of suit : 22.05.2015
Date on which Judgment reserved : 13.02.2017
Date on which judgment pronounced : 13.02.2017
Decision : Decreed
J U D G M E N T
1.The present suit for recovery of Rs. 94,732/ has been filed by the plaintiff company against the defendant society.
Plaint
2. The case of the plaintiff is that it is a company CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 1/21 incorporated under the Companies Act 1956 and is inter alia engaged in post tensioning work in the construction of buildings etc. 2.1 It is further its case that defendant is a Charitable Society engaged in the activity of construction and running of educational institutes etc. 2.2 It is further its case that defendant approached the plaintiff for post tensioning of beams at 7th and 8th Floor for its building named Skyline Institute of Engineering and Technology, Greater Noida, UP and placed work order on 23rd July 2012 for a consideration of Rs. 6,30,000/ plus taxes.
2.3 It is further its case that in terms of the work order the defendant was to release the payment of 10% on mobilization advance, 40% on delivery of prestressing material at site, 15% on concreting and 35% on stressing.
2.4 It is further its case that it raised three bills viz. RA01 dated 29.10.2012, RA02 dated 28.11.2012 and RA03 dated 02.01.2013 for the agreed amount yet part payment is pending against all the three bills making a total outstanding of Rs. 66,488/ which the defendant is neglecting to release for no reason or rhyme.
CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 2/21 2.5 It is further its case that defendant requested the plaintiff for issuance of completion certificate which was duly sent by the plaintiff vide its letter reference no. SCS/SITE/2012/0701/BBR dated 19.02.2013 and plaintiff again requested the defendant to release the outstanding payment yet to no avail.
2.6 It is further its case that it sent a legal notice dated 16.12.2014 demanding a sum of Rs. 66,488/ to the defendant, but to no avail.
2.7 It is further its case that to its utter shock the defendant in its reply to legal notice dated 16.12.2014 despite having received the completion certificate and using the same in furtherance of the sanctions of the institute, made a wild allegation of not removing the scaffolding and rectification of defect alleged to be pending.
2.8 Hence, the present suit.
3. The defendant appeared in pursuant to service of summons and filed its Written Statement.
Written Statement of defendant
4. It was pleaded that the suit filed by the plaintiff is vague, CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 3/21 does not reflect any cause of action and is liable to be dismissed. It was pleaded that the plaintiff has not disclosed the facts on the basis of which it claims that there is total outstanding of Rs. 66,488/.
4.1 It was further pleaded that plaintiff with an intention to misguide this court did not disclose the terms of work order on the basis of which it is alleged that amount of Rs. 66,488/ is outstanding on the part of defendant.
4.2 It was further pleaded that the plaintiff intentionally omitted to mention that there would be VAT @ 4% and service tax @ 4.88% on the work order of Rs. 6,30,000/ and that the completion time of work was 75 days from the date of work order i.e. 23 July 2012 which expired on 6th October 2012.
4.3 It was further pleaded that the defendant released advance payment of 10 % of the contract value to the plaintiff and the same was accepted by the plaintiff however despite receiving the advance payment on 27.07.2012 plaintiff did not complete the work order on 06.10.2012.
4.4 It was further pleaded that the work order dated 23.07.2012 also contains the scope of work order and responsibilities of the plaintiff. It was further pleaded that the plaintiff has not taken CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 4/21 insurance for equipment & W.C. Policy and that it has not complied with item no. 8 i.e. cutting & Profiling of strands, ducts & anchorages as per the work order dated 23.07.2012.
4.5 It was further pleaded that as per the terms of the work order the defendant provided sufficient working platform near stressing ends to the plaintiff during the entire period of work on hire basis from Skyline Infratech Ltd on monthly rentals.
4.6 It was further pleaded that plaintiff was required to handover the complete work by 06.10.2012 as specified in the work order dated 23.07.2012 but the defendant was compelled to take the unfinished, incomplete work on 19.02.2013 in order to avoid more losses on account of rent for providing scaffolding/working platform.
4.7 It was further pleaded that the defendant sustained heavy losses on account of the delay caused by the plaintiff in completing the work and now the defendant is willing to file a suit for damages/compensation for the losses sustained by it on account of delay caused by the plaintiff in completing the work order dated 23.07.2012 and a notice for that was also sent to the plaintiff on 16.09.2015.
4.8 It was further pleaded that on account of delay caused by CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 5/21 the plaintiff in performing the work as per work order dated 23.07.2012, the defendant had incurred huge loss of Rs. 4,95,535/ for rentals for providing working platform/scaffolding for extra period of around four and a half months than as provided in the work order.
4.9 It was further pleaded that the plaintiff has raised three bills but has not shown what were the bill amounts and what were the items against which the bills were raised. It was further pleaded that the plaintiff has not shown whether the bills were raised according to the terms of the work order or arbitrarily. It was further pleaded that the plaintiff has also concealed the amounts received by it against each bills and has straightforwardly claimed that there is a total outstanding of Rs. 66,488/.
4.10 It was further pleaded that the plaintiff has received its entire dues according to the work done by it on 01.04.2013 itself and the defendant is not liable to make any payment to the plaintiff. It was pleaded that the legal notice dated 16.12.2014 sent by the plaintiff after receipt of final payment on 01.04.2013 is vague, baseless and has been sent just to illegally extort money from the defendant.
Replication/Rejoinder
5. The plaintiff filed replication to the written statement of the CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 6/21 defendant wherein it denied the averments of the written statement while simultaneously reiterating and reaffirming the contents of the plaint.
ISSUES
6. On the basis of the pleadings of the parties following issues were framed by the Ld. Predecessor of this court vide order dated 15.10.2015:
1. Whether plaintiff is entitled to decree for a sum of Rs. 94730 as prayed ? OPP
2. Whether plaintiff is entitled to any interest, if yes, at what rate and for what period? OPP
3. Relief.
Plaintiff evidence
7. In order to prove its case plaintiff examined Sh. Bharat Bhushan as PW1 who deposed on the lines of plaint. He tendered his evidence by way of affidavit as Ex. PW1/A and relied upon following documents:
(a) Board Resolution as Ex. PW1/1,
(b) Work order as Ex. PW1/2, CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 7/21
(c) Statement of Account as Ex. PW1/3,
(d) Bills and statement of account as Ex. PW1/4,
(e) copy of completion certificate as Mark PW1/5,
(f) Legal notice as Ex. PW1/6 and
(g) Reply as Ex. PW1/7 7.1 Plaintiff examined another witness Sh. M. Raju as PW2 who tendered his evidence by way of affidavit as Ex. PW2/A and relied upon document i.e. copy of site plan as Mark PW2/1 and Conveyance Expenses as Ex. PW2/2.
Defendant Evidence
8. As against this defendant examined Sh. Rajnish Kumar, HR Manager as DW1 who tendered his evidence by way of affidavit as Ex. DW1/A. He relied upon following documents:
(a) Authority letter dated 03.11.2016 as Ex. DW1/1,
(b) Work order dated 23.07.2012 as Ex. DW1/2,
(c) 10 photographs as Ex. DW1/3 (colly),
(d) Copy of bills as Mark A (colly)
(e) copy of ledger account maintained for BBR India Pvt.
Ltd. as Ex. DW1/5.
9. I have heard the Ld. counsel for parties, have given due CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 8/21 consideration to the rival contentions raised at bar and have carefully gone through the record.
Findings
10. My issue wise finding is as under: Issue No. 1.
Whether plaintiff is entitled to decree for a sum of Rs. 94730 as prayed ? OPP 10.1 In nutshell it is the case of the plaintiff that despite completing the work in terms of work order dated 23.07.2012 and despite repeated demands defendant did not clear the outstanding amount of Rs. 66,488/ and it is this amount with interest which is now being claimed by the plaintiff by way of the present suit.
10.2 After considering the entire material on record I am of the opinion that the plaintiff is indeed entitled to the outstanding amount as per work order dated 23.07.2012.
10.3 Execution of work order dated 23.07.2012 i.e. Ex. PW1/2/Ex.DW1/2 is not disputed. Ex. PW1/2/Ex.DW1/2 which is an CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 9/21 admitted document is the basis of the entire claim of the plaintiff. As per this work order the total amount agreed to be paid by the defendant to the plaintiff was Rs. 6,30,000/ excluding the VAT and Service Tax.
10.4 Apart from the work order even the payments made by the defendant and received by the plaintiff are not disputed. Though the defendant did agitate that the plaintiff failed to file on record different bills raised at different times and the particulars of the payment made against those bills however this agitation looses significance in view of the fact that there is no dispute as to the total payment made to and received by the plaintiff. The plaintiff as per its statement of account Ex. PW1/3 claims to have received a total a sum of Rs. 6,13,520/ from the defendant. The defendant did not dispute the same even once during the trial. It was not even once claimed and accordingly never suggested to the plaintiff's witnesses during their cross examination that the defendant had paid or that the plaintiff had received more payment than Rs. 6,13,520/.
10.5 Nonetheless apart from Ex. PW1/3 plaintiff also filed Ex. PW1/4 i.e. detailed statement of account and copy of the bills against which the payments were received which puts to rest controversy if any regarding the payment made to or received by the plaintiff. In fact the defendant had also produced its ledger account i.e. Ex. DW1/5 wherein CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 10/21 all the payments made by it and received by the plaintiff are duly reflected and all the payments tally. The payment was made to the plaintiff on four occasions in the sum of Rs. 55900/, 2,74,571/, 1,01,819/ and 1,81,230/ respectively. There is no dispute regarding the the above payments. Though there is a dispute regarding the time of payment however the dispute regarding the time of payment is insignificant except for the payment of Rs. 55,900/.
10.6 Though Ld. Counsel for the defendant relied upon Anvar PV Vs. P.K. Basheer and ors. (2014) 10 SCC 473, Central Bureau of Investigation Vs. V.C. Shukla AIR 1998 SC 1406 and Ishwar Dass Jain Vs. Sohan Lal AIR 2000 SC 426 to argue that the statement of account were not proved as per the rules of evidence however the said case laws does not help the cause of the defendant for the simple reason that there is no dispute regarding the total payment made by the defendant or received by the plaintiff in the present case. The judgments would have assumed significance in the context of the present case if the defendant had disputed the claims of the plaintiff regarding the total payment made to it and had claimed that defendant had paid much more than as was claimed by the plaintiff. Once there is no such dispute reliance upon the above case laws does not come to the rescue of the defendant.
CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 11/21 10.7 Ld. Counsel for the defendant had also argued that the defendant is not liable to make any further payment to the plaintiff as the plaintiff did not complete the work in time as per the work order. It was argued that as per work order dated 23.07.2012 entire work was to be completed within 75 days however the plaintiff failed to complete the work within 75 days and therefore the plaintiff is not entitled to any amount. It was argued that time was the essence of the contract and as the plaintiff failed to complete the work within the stipulated time it cannot claim any amount from the defendant. However I find no merits in the arguments of the Ld. Counsel for the defendant.
10.8 No doubt as per Ex. PW1/2 i.e. work order the entire work was to be completed within 75 days and it was not completed within the said period/timeline however the plaintiff cannot be blamed for non completion of work within the stipulated time. As per the work order defendant was under an obligation to make advance payment of 10% i.e. Rs. 63,000/ as "mobilization advance". However the "mobilization advance" was given to the plaintiff only on 10.10.2012 as is reflected in the statement of account i.e. Ex. PW1/4 i.e. after the lapse of more than 2 and ½ months (Note: as per work order dated 23.07.2012 the work was to be completed within 75 days i.e. by 06.10.2012 but the payment of "mobilization advance" was made only on 10.10.2012). This caused the delay in completion of the work within CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 12/21 the stipulated time. PW1 during his cross examination explained the same when he stated "I can start the work only when I get 10% mobilization advance in terms of the work order. It is correct that we have to complete the work order within 75 days from the date of receipt of the work order. (Vol., but we have to start the work only after getting the 10% mobilization advance). Obviously the plaintiff and for that matter any other person or entity would not have commenced the work unless the " mobilization advance" was paid to it. This is a prudent call which every person or entity would make at the time of commencement of any work as per the contract/work order.
10.9 The delayed payment by the defendant itself proves that the time was not the essence of contract/work order as claimed by the defendant. Whether the time is the essence of the contract or not is to be gathered from the intention of the parties and in the case at hand the conduct of the defendant in releasing the " mobilization advance" after 2 and ½ months itself proves that time factor was not material or it was not the essence of the contract. Reliance may be placed upon the law laid down in Hind Construction Contractors Vs. State of Maharashtra 1979 AIR 720, Chand Rani Vs. Kamal Rani 1993 AIR 1742 and Gomathinayagam Pillai Vs. Pullaniswami Nadar 1967 AIR 868.
CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 13/21 10.10 Furthermore once the defendant itself does not do its part of the obligation as per the work order and defaults and delays in making the payment of "mobilization advance" the defendant cannot agitate that the work was not completed within the stipulated time. In fact the complete amount as "mobilization advance" was not paid to the plaintiff as per the work order. As per work order defendant was to pay Rs. 63,000/ but only a sum of Rs. 55,900/ was paid to the plaintiff.
10.11 Though Ld. Counsel for the defendant relying upon Ex. DW1/5 had argued that the "mobilization advance" was released to the plaintiff on 27.07.2012 itself however I am of the firm opinion that the plea of the defendant to that extent is nothing but a falsehood. To that extent the defendant tried to hoodwink the court and set up a case which was nothing but a bundle of lies. A bare glance at Ex. DW1/5 would reveal that there is cutting/ interpolation on the date mentioned against the cheque/payment. Date seems to have been altered deliberately to defeat the claim of the plaintiff. If indeed the payment was made on 27.07.2012 as claimed by the defendant than the defendant should have proved its statement of account/entry in the passbook/bank records to corroborate the said claim. In fact DW1 during his crossexamination stated as "I have no record as to prove that the cheque of advance payment of 10% was released on CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 14/21 27.07.2012 except the date mentioned in Ex. DW1/5." It is also not disputed that the above said cheque was credited in the account of the plaintiff on 10.10.2012 which is otherwise also evident from Ex. PW1/4. The defendant also did not bother to examine any of its employee to prove that the cheque was given to the plaintiff on 27.07.2012. Hence the defendant could not even remotely prove its claim of having made the payment or issued the cheque on 27.07.2012.
10.12 Furthermore I am not inclined to believe that the plaintiff would have deliberately not encashed the said cheque immediately after 27.07.2012 if indeed it was issued on 27.07.2012 and would have encashed it only on 10.10.2012. Why would the plaintiff deprive itself of the payment? The defendant could not explain and even I fail to understand what could have been the rational behind the same as was claimed by the Ld. Counsel for the defendant. In fact this very entry, cutting, interpolation in Ex. DW1/5 entitles the plaintiff to the recovery of the amount as it proves the falsehood in the case of the defendant.
10.13 It was also argued by Ld. Counsel for defendant that not only the work was not completed within the stipulated time but in fact the defendant was compelled to take incomplete and unfinished work from the plaintiff as a result the defendant suffered damages and hence CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 15/21 no question of payment of any outstanding amount arises. However I find no merits in the said arguments of the Ld. Counsel for the defendant. It has already been discussed above that time was not the essence of the contract/work order and the delay if any occurred on account of delayed payment of "mobilization advance" by the defendant. As far as the contentions that the defendant was compelled to take incomplete and unfinished work are concerned same are meritless and merely an afterthought to avoid payment of the outstanding amount/dues. Plaintiff proved on record the completion certificate issued by it to the defendant as Mark PW1/5. Vide this completion certificate the plaintiff informed the defendant that no work/activity was pending at their end and that they have completed the job in all respects. This completion certificate was sent along with a covering letter via email to the defendant on 20.02.2013. This completion certificate was not disputed during the trial. Not even once it was suggested to PW1 that this completion certificate was never received by the defendant. In fact DW1 during his crossexamination stated as "It is correct that after completion certificate dated 19.02.2013 and legal notice thereafter on 16.12.2014 no objection was raised in the work of plaintiff." Once there is no dispute/cross examination of the plaintiff's witnesses on issuance of this completion certificate the arguments of the Ld. Counsel for the defendant based upon Anvar PV (Supra) that no certificate u/s 65B of Indian Evidence Act was filed along with the mail/ completion certificate can CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 16/21 be entertained.
10.14 After receipt of this completion certificate i.e. Mark PW1/5 the defendant did not raise any objection with the plaintiff that the plaintiff had falsely/wrongly claimed to have completed the work or that the some work was still pending. Had that been the case there still might would have been some merit in the contentions of the defendant but once no such objection is raised to the completion certificate than the plea that the work was not completed or that incomplete work was taken by the defendant cannot be entertained. In fact after the completion certificate the defendant admittedly released payment of Rs. 1,81,230/ to the plaintiff on 29.03.2013 which was credited into the account of the plaintiff on 12.04.2013 as reflected in Ex. PW1/4/DW1/5. If indeed the defendant was compelled to take incomplete or unfinished work than in my considered opinion that the defendant would not have made the above payment to the plaintiff. The very fact that the defendant did not agitate the issuance of completion certificate i.e. Mark PW1/5 coupled with the fact that the above payment was released to the plaintiff itself proves that the plea of the defendant is merely an afterthought to avoid the liability.
10.15 Though Ld. Counsel for the defendant had also argued that the account was duly settled with the plaintiff as is reflected in Ex.
CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 17/21 DW1/5 and no amount remains due however I find no merits in the said arguments. I have perused Ex. DW1/5 and the noting at the bottom of the same which reads as "full and final" "mera koi payment company mein baki nahin hai". Though the defendant claimed that this noting was made on behalf of the plaintiff however I am of the considered opinion that this noting in Ex. DW1/5 is forged, fabricated and manipulated. To begin with the defendant did not give the name of the person/employee who had made the above noting on behalf of the plaintiff company. The defendant did not bother to examine its accountant who maintained the ledger account i.e. Ex. DW1/5 or the person in whose presence the above noting was allegedly made in ledger. In fact the affidavit of DW1 who had proved the said document is absolutely silent as to the details of the person who had made the above noting on behalf of the plaintiff company i.e. his name, designation etc in the plaintiff company. In fact there is no mentioning of any full and final payment/settlement in the written statement or the affidavit of DW1. All this further proves that the defendant had put up a false and concocted defence based upon forged and fabricated documents.
10.16 Though Ld. Counsel for defendant had also argued that the plaintiff had not taken the insurance cover in terms of the work order and therefore, this itself disentitles the plaintiff to any CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 18/21 outstanding amount, however, I find no merits in the same. To begin with defendant could not prove that how on account of the insurance cover not being taken by the plaintiff, the defendant suffered loss or damages. Furthermore, DW1 categorically admitted during the cross examination that defendant did not suffer any loss because the plaintiff did not take the insurance cover in terms of the work order. Hence, merely because the plaintiff did not obtain the insurance cover this itself does not entitle the defendant to avoid its liability. In fact the witness (DW1) examined by defendant was not even aware about the actual facts of the present case which is writ large from the opening statement of his crossexamination which read as "I do not have the knowledge what job the plaintiff had done for the defendant". One cannot be expected to defend a recovery suit with such a witness and in such a manner.
10.17 Though Ld. Counsel for defendant argued that defendant had to suffer damages and huge losses towards rental for providing working platform/scaffolding for extra period of around four and a half months as the plaintiff delayed the completion of the work and therefore, the plaintiff is not entitled the outstanding amount, however, I find no merits in the same. As far as the provision of working platform/scaffolding is concerned it was the duty of the defendant to provide the same as per the work order. Delay as already discussed CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 19/21 above at length cannot be attributed to the plaintiff but the delay occurred on account of the delayed release of "mobilization advance"
by the defendant and therefore, if the defendant had to bear huge rentals towards scaffolding charges only he has to bear the same and not the plaintiff. And indeed if there was some damage or loss suffered by the defendant due to fault or delayed execution of the work by the plaintiff the defendant failed to prove the same. Though DW1 filed certain photographs i.e. Ex. DW1/3 however it cannot be even remotely guessed from the photographs as to how the defendant or the defendant's property suffered the loss or damages as claimed by it.
10.18 It will be worthwhile to highlight that despite such tall claims of having suffered loss, damages and having to take incomplete, unfinished work all of which was attributed to the plaintiff till date defendant has not filed any suit seeking recovery of damages against the plaintiff. If indeed there was some genuineness in the claims of the defendant, the defendant would have definitely initiated some action against the plaintiff. Having not done so till date is itself a proof of the baldness of the defendant's claim.
10.19 This issue is accordingly decided in favour of the plaintiff and against the defendant. Plaintiff is entitled to the recovery of Rs. 94,730/ which the defendant is liable to pay.
CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 20/21 Issue no. 2 Whether plaintiff is entitled to any interest, if yes, at what rate and for what period? OPP
11. As far as interest portion is concerned I award pendentelite and future interest @ 6% per annum in favour of the plaintiff. This issue is accordingly decided in favour of the plaintiff.
Relief
12. Therefore in view of above discussion the suit of the plaintiff is decreed for a sum of Rs. 94,730/ with pendentelite and future interest @ 6% per annum. Decree sheet be prepared accordingly.
13. File be consigned to Record Room.
Announced in the open court (Gaurav Rao)
on 13th February 2017 SCJ/RC/SouthEast
Saket Courts/New Delhi
CS No. 51790/2016 BBR (India) Pvt. Ltd. Vs. Satilila Charitable Society 21/21