Delhi District Court
M/S Siyaram Construction Co vs M/S Larsen & Toubro Ltd on 29 August, 2022
IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT
JUDGE04, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI.
CNR No.DLSW010018842016
CS No.16381 of 2016
In the matter of:
M/s Siyaram Construction Co.
1, Hotel Basant,
Bhagavatiganj,
Diviyapur,
Distt. Auraiya, UP. .......Plaintiff.
VERSUS
M/s Larsen & Toubro Ltd.
Through Authorised Representative/
Managing Director
L&T House,
Ballad Estate,
PO Box278
Mumbai400001.
Also at:
M/s Larsen & Toubro Ltd.
ECC Construction Divn.
211, Okhala Industrial Area,
PhaseIII, New Delhi. ......Defendant.
CS No. 16381/16 Page No. 1/24
Date of Filing : 09.05.2011
Date of Arguments : 27.08.2022
Date of Decision : 29.08.2022
JUDGMENT
1. Vide this judgment, I shall dispose off instant suit filed by the plaintiff against the defendant company for recovery of Rs.37,03,193/ along with interest.
1.1 Initially the suit was filed before Hon'ble High Court and was transferred to District Courts owing to enhancement of pecuniary jurisdiction in terms of order dated 11.12.2015, whereafter the case was assigned to this Court.
2. Factual matrix:
2.(i) The plaintiff is a registered partnership firm engaged in the business of construction work with Government and other local bodies. The suit has been filed through Sanjeev Gupta who is the registered partner of the plaintiff firm.
2.(ii) The plaintiff had entered into a contract for work of JLPL Jaipur site through different work orders being Nos.,1000077, ENPC/DLRO/JLPL/035, work order for Misc. labour supply No.200042, work order for labour supply for Punch list no.200043 with the stipulated date of start as July 2000 and the work was completed on April 2001. The originals of the Agreement/work orders are stated to be in the possession and custody of the defendants.
2.(iii) It is stated further that plaintiff concerned had executed various works as CS No. 16381/16 Page No. 2/24 mentioned in para no.3 of the plaint which included the work of SV Station for which full payments have not been made though the measurements have been recorded in various measurement books. The defendant also had not made payments for the work executed and for which the measurements were recorded in MB No.152449 and 152452 for Rs.51,903/. Further, the plaintiff have also submitted the bill for the difference for the cost of materials debited in excess for Rs.15,140/. An amount of Rs.62,500/ was also due and payable as per the details of measurement of SV55. An amount of Rs.4,00,000/ as also been retained by the defendant against the retention money deducted from the various bills.
2.(iv) The defendant stated to have pressurized the plaintiff to give no claim certificate before processing the bill for payment. It is stated that since the plaintiff had acute shortage of money and due to marriage in the family, the certificate was given and this position has been explained in the letter dated 22.12.2003. The plaintiff further relied upon letters dated 03.08.2009, 09.09.2009, 12.10.2009, 16.11.2009, 10.12.2009, 14.01.2010, 10.02.2020 (2 nos.), 09.03.2010, 14.03.2020, 10.04.2010, 20.04.2010, 31.05.2010, 10.07.2010, 04.08.2010 etc.
2.(v) It is further averred that the defendant have released an amount of Rs.2,78,702/ in January 2009 against the outstanding bill of Rs.22,91,307.72.
Further, the details of Rs.2,78,702/ paid has not been furnished by the defendant as to which bill the said amount pertained. As such, deducting the said payment, the outstanding are as hereunder:
CS No. 16381/16 Page No. 3/24a. Details of quantities difference in Final bill (work order no.1000077) Rs.6,89,310.89 b. Items not paid in work order E&PC/DLRO/JTPL 035 M.B. NO.171319 Rs.45,939.00 c. Misc labour supply for Misc. work (work order no.200042) d. Punch list work at following SV Station Rs.10,26,514.83 e. Misc. labour supply for Punch list (work order No.) 200043. f. Details of quantities for insurance claim MB No.152449, 152452. Rs.51,903.00 g. Difference of amount debited from stores Rs.15,140.00 h. Measurements not certified due to transfer site incharge (SV55) Rs.62,500.00 i. Over all retention approx Rs.4,00,000.00 Total Rs.22,91,307.00 Less paid in Jan 2009 Rs.2,78,702.00 ...........................
Rs.20,12,605.00
2.(vi) It is further averred on behalf of the plaintiff that after having issued various reminders for release of the balance payment, the defendants have finally denied any payments due vide letter dated 20.04.2010 and again on 04.08.2010. Therefore, the plaintiff sent legal demand notice dated 18.02.2011 to the defendants but in vain. Hence, the present recovery suit has been filed by the plaintiff against the defendants seeking the recovery of aforesaid amount.
3. Summons for settlement of issues were directed upon the defendants. I am using the word "defendants" for the reason that the case was pending before the Hon'ble High Court and at that point of time in the initial plaint the defendants arrayed were namely (i)The Chairman M/s Larsen & Toubro Ltd and (ii) The Regional Manager, DLRO, L & T, ECC Construction Division.
3.1 Subsequently, Written Statement was not filed and right to file Written CS No. 16381/16 Page No. 4/24 Statement was closed in terms of order dated 18.01.2012. Again a submission was made that an application under Order I Rule 10 CPC was filed by the plaintiff. Now this application was taken note of in the order dated 11.02.2013 wherein the plaintiff sought to carry out necessary amendments in the Memo of Parties to correctly describe the defendant company instead of "The Chairman, M/s Larsen & Toubro Ltd". Now again this aspect was dealt in terms of order dated 08.10.2013 passed by the Hon'ble High Court. By way of the said order, defendant M/s Larsen & Toubro was permitted to be sued in its own name. Further, the defendant was also permitted to file the Written Statement. As such, instead of the defendants, the sole defendant became Larsen & Toubro.
3.2 Defendant in Written Statement has raised the preliminary objection that the suit is barred by the provisions of Limitation Act, 1963. It is stated that as per para 2 of the plaint, plaintiff allegedly completed the work on JLPL project at Jaipur site in April, 2001 and plaintiff issued No Claims Letter dated 10.06.2002 and payment ought to have been made by November, 2001. It is further stated that cause of action arose from April 2001 or November 2001 and the suit was to be filed by April 2004 or November, 2004, however, the suit has been filed only in 2011 and the defendant M/s Larsen & Toubro Ltd has been impleaded only in 2013. Regarding last payment of Rs.2,78,702/ made in January, 2009 by the defendant to the plaintiff, for the purpose of cause of action, defendant disputed the same. Defendant has also raised the issue of territorial jurisdiction of Courts at Delhi to entertain the present suit stating that head office and registered office of the defendant are located at Chennai and Mumbai respectively and only a branch/regional office of the CS No. 16381/16 Page No. 5/24 defendant is located at Delhi. The site of the work order is stated to be at Jaipur, Rajasthan.
3.3 In its reply on merits, the defendant denied being in possession and custody of Work Orders/Agreements, as alleged by the plaintiff. Defendant denied that it has not made full payments to the plaintiff as alleged by the plaintiff. The plaintiff stated to have deliberately withheld and suppressed the measurement books by not producing the same. Defendant has also denied having retained an amount of Rs.4 Lakh against the alleged retention money deducted from various bills, as alleged or otherwise.
3.4 Defendant denied having pressurized the plaintiff to give a No Claim Certificate and stated that No Claim Certificate is a standard document commonly and routinely followed by the industry. Letters relied upon by the plaintiff stated to have been issued to the defendant were stated to be false and denied by the defendant.
3.5 Defendant denied that they have released the amount of Rs.2,78,702/ in January 2009 against the alleged bill of the plaintiff for Rs.22,91,307.72 in the manner as alleged. It is stated that amount of Rs.2,78,702/ pertains to retention amount in Work Orders No.100077 (Rs.2,39,834/), 100121 (Rs.44,959/) and 100261 (Rs.1017/) after statutory deductions as per law. Defendant denied that any amount as alleged by the plaintiff is due and payable against the defendant company. Dismissal of the suit was sought for.
CS No. 16381/16 Page No. 6/244. Replication was filed to the Written Statement. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
5. On the basis of material available on record and the pleadings of the parties, vide order dated 08.11.2016, Hon'ble High Court had framed following Issues:
(1)Whether the plaintiff is entitled for a decree of recovery for a sum of Rs.37,03,193/ (Rs.20,12,605/ as principal amount and Rs.16,90,588/ as interest @ 12% p.a. calculated from March, 2004 to March, 2011) against the defendants?OPP (2)Whether the plaintiff is entitled for further interest @ 12% per annum?OPP (3)Whether the suit is barred by limitation?OPD (4)Whether this Court has no territorial jurisdiction to entertain and try the present suit?OPD (5)Relief.
6. In evidence, the plaintiff Sh. Sanjeev Gupta, the partner of the plaintiff concern tendered his evidence by way of affidavit Ex.PW1/A and relied upon following documents:
(1)Registration of Partnership and Resolution as Ex.PW1/1 (Colly) (2)Letter dated 22.12.2003 and courier receipts as Ex.PW1/2 & Ex.PW1/3 (3)Letter dated 17.01.2004 and courier receipt as Ex.PW1/4 & Ex.PW1/5 (4)Letters dated 09.09.2009, 03.08.2009, 12.10.2009, Ex.PW1/6 to 02.11.2009, 16.11.2009, 10.12.2009, 14.01.2010, Ex.PW1/19.CS No. 16381/16 Page No. 7/24
10.02.2010 (4 Nos.),11.03.2010, 10.04.2010 and 18.04.2010 as (5)Letters dated 20.04.2010 & 04.08.2010 as Ex.P1 & Ex.P2 (6)Legal notice dated 03.09.2010 as Ex.P3 He was crossexamined at length and discharged. Thereafter, PE was closed.
7. Defendant examined Sh. Vinod Kumar Sharma, Authorised Representative of the defendant company as DW1. He tendered his evidence by way of affidavit Ex.DW1/A1. He relied upon copy of Power of Attorney dated 06.09.2018 as Ex.DW1/A (OSR) and copy of Notarized Power of Attorney dated 29.08.2013 as Ex.DW1/2(OSR). He deposed in consonance with the case setforth in the Written Statement.
7.1 Defendant also examined DW2 Sh. Rajeev Sahajpal who tendered his evidence by way of affidavit Ex.DW2/A1. He relied upon copy of Power of Attorney dated 26.08.2019 as Ex.DW2/A (OSR) and copy of Inter Division Service Agreement executed on 08.12.2012 between L & T Realty and L&T Construction as Ex.DW2/B(OSR). The third document was copy of handover letter issued to IFCI Ltd. the lessor of the premises at Nehru Place. The fourth document was the printout of lost property report filed before Haryana Police which was exhibited as Ex.DW2/D. This witness was examined for placing on record the reasons i.e. leading to the discovery of the loss of the original power of attorney of Shri Rajan Malhotra. Sh. Rajan Malhotra is the person who has CS No. 16381/16 Page No. 8/24 filed the Written Statement on the strength of the Power of Attorney and had also sworn the affidavit accompanying the Written Statement. He was cross examined by Ld counsel for plaintiff and discharged.
Thereafter DE was closed.
8. Heard either side.
9. My issuewise findings are as under.
10. I shall take up issue no.3 at the beginning.
Issue No.(3)Whether the suit is barred by limitation?OPD This issue pertains or was framed taking into account the strong objection taken by the defendant company regarding the suit being barred by limitation. Ld counsel for the defendant had contended that the work order pertained to one project - the Jaipur project which had wrapped up way back in the year 2001. The plaintiff was corresponding unilaterally to all including the other associates of the defendant company and also raising scandalous allegations without any substance. The entire payment was made at the time the NOC was given. The balance i.e. retention money was also paid. Infact once cause of action had accrued the suit could have been filed within a period of three years of completion of the project or at best within three years from the date of the NOC. The limitation cannot be prolonged merely by writing letters as done by the plaintiff.
10.1 Another limb of the argument of the defendant was that initially the suit CS No. 16381/16 Page No. 9/24 was filed arraying two defendants and the company M/s L & T was impleaded in terms of order dated 08.10.2013 - as per Section 21 of the Limitation Act, 1963, the said addition does not relegate back and the suit is deemed to be instituted against defendant L & T from 08.10.2013 and counting from the date of last payment as well, the suit is hopelessly barred by limitation.
10.2 Delving further in this regard it was argued that the plaintiff himself had acknowledged such aspect as evident in his statement which was recorded on 08.10.2013 and whereafter M/s Larsen & Toubro Ltd was impleaded as party and Written Statement was permitted to be filed accordingly.
10.3 On the other hand, Ld counsel for the plaintiff vehemently controverted the said assertion and claimed that the suit has been filed within the period of limitation. Infact the plaintiff had corresponded continuously with the defendant company for payment of his balance dues and finally some money was paid in December, 2008 but the entire outstanding was not cleared and infact it was also not specified as to under which head the said payment was, as such the plaintiff had appropriated the same to common pool and limitation therefore commence from the said date and counting from the said date, the suit is well within time.
10.4 On the aspect of limitation, let me also quote the document Ex.PW1/D1 i.e. purported NOC issued by the plaintiff and the same reads as under:
To, The Accounts Officer CS No. 16381/16 Page No. 10/24 L&T ECC Division JLPL Jaipur Sub: No Claim Letter.
Respected Sir, With due regards I would like to clarify that I have no claim for JLPL Site regarding all the work orders and have due payments of my retention only.
Thanking you Sir.
Yours faithfully 10.06.02 (For Siyaram Const. Co.) 10.5 I have purposely quoted the said document. Now this NOC has been strongly disputed by the plaintiff by contending that the same was involuntarily given as marriage was scheduled in his family [partner's family] and for which they were in dire need of money. This aspect of said undertaking/NOC being involuntarily would be dealt subsequently but suffice to note herein that said undertaking/NOC mandates that retention money was being retained by the defendant company - it is but obvious that when retention money is paid by defendant company then only contract is deemed to be ended or exhausted.
Reason is obvious some part of the money/some amount from individual contracts is retained by the defendant company as security or as retention money for due performance of the contract. In simpler words the contract get completed only after retention money is paid. Counting from the said date when retention money was paid, the suit initially filed was within time, having been filed in the year 2011 i.e. May, 2011.
CS No. 16381/16 Page No. 11/2410.6 The onus to prove this issue was casted upon the defendant. Defendant has also not specified any document or place on record, the copy of the work order or such other details from which terms and conditions of the contract/the terms and conditions of retention money i.e. outer time limit could be proved. Now the defendant company had contended that the work order/work was completed in the year 2001 itself and they retain the record for a period of three years only, as stated by DW1 during his crossexamination then in that eventuality they too should have made the payment within a period of three years from the completion of project. If the defendant company themselves are making the payment after a period of six or seven years of the completion of the project without specifying the contractual terms, they cannot be permitted to contend that the suit is barred by limitation.
10.7 In the light of Ex.PW1/D1, which was undertaking/NOC sought by the defendant concern, as a precursor for the release of payment and at the same time some payment being retained, that retention also having been admitted, the time to file suit for recovery of balance amount also gets an automatic extension as the contract subsists and counting from the date of last payment, the suit is within time.
10.8 Coming to the second argument that earlier suit was filed against Chairman and the Regional Head and subsequently it was amended and the sole defendant permitted was the company M/s L & T and no permission was granted as envisaged under Section 21 of the Limitation Act, 1963, the suit is deemed to be initiated from the date such parties is added, in this regard if I CS No. 16381/16 Page No. 12/24 look at the order dated 08.10.2013 it only pertains to correction of misdescription of defendant no.1 company. It is not if I may use the word adding any "new party"; infact M/s L & T was already made a party to the suit and was sought to be represented by its Chairman.
10.9 For the sake of clarify, I may quote the orders dated 11.02.2013 - some part thereof:
3.At this stage, counsel for the defendant states that by the aforesaid application, the plaintiff seeks amendment of the memo of parties on the ground that the names of the defendants need to be correctly reflected as the defendant company has to be impleaded properly instead of describing it as "the Chairman, M/s Larsen & Turbo Ltd". She submits that despite the aforesaid releif sought by the plaintiff, the amended memo of parties filed with the said application reveals that the plaintiff has proposed to array M/s Larsen & Turbo Ltd. as defendant No.1, while retaining the present defendants as defendants No.2 & 3, which is impermissible.
4.Counsel for the plaintiff states that he may be permitted to reexamine this aspect and file a fresh application.
10.10 Again I am quoting the order dated 08.10.2013:
Learned counsel for the plaintiff submits that M/s Larsen and Toubro is a company incorporated under the Companies Act. It is an independent entity and has to be sued in its own name.
Issue notice.
Learned counsel for the Defendants accepts notice. She has no objection to the amendment being allowed. Consequently, the application is disposed of.CS No. 16381/16 Page No. 13/24
Amended memo of parties be filed within one week. By this appeal the Appellant/Defendant challenges the order dated 18th January, 2012.
It may be noted that the plaintiff had not impleaded the right parties as Defendants and thus the Defendants as per the earlier memo of parties could not have filed their written statement. Learned counsel for the sole Defendant seeks time to file the written statement.
Since the Plaintiff has now amended the memo of parties and impleaded the proper party as Defendant, the impugned order is set aside. The Defendant is permitted to file the written statement within four weeks. Replication be filed within four weeks thereafter.
10.11 As such, if I read holistically it is not adding a new party but only a correction of the misdescription of the defendant company. As such, to my mind there is no new party which has been added by way of the said order.
Hence question of Section 21 of the Limitation Act, 1963 does not arise at all.
This issue no.3 on the aspect of limitation is decided in favour of the plaintiff and against the defendant company.
11. Now I shall take up issue No.4 which reads as under:
Issue No.(4)Whether this Court has no territorial jurisdiction to entertain and try the present suit?OPD 11.1 Coming to the second aspect i.e. issue of territorial jurisdiction - burden to prove that this Court has no territorial jurisdiction was casted upon the defendant.CS No. 16381/16 Page No. 14/24
11.2 Now in this regard, the plaintiff in his plaint, particularly in para 13 has asserted as under:
That this Hon'ble Court has territorial jurisdiction to entertain the present suit against jurisdiction to entertain the present suit against the defendant company in as much as the defendant has also has its office in New Delhi and the entire correspondence from the defendants issued form Delhi office.
11.3 The defendant in Written Statement has taken strong umbrage to the said fact and contended in para 2 that Head Office and Registered Office are at Chennai and Mumbai respectively and only a branch office is located at Delhi.
No cause of action or part thereof had arisen at Delhi. The work orders were concluded at Chennai and performed at Jaipur, Rajasthan. Further, mere issuance and receipt of correspondence at New Delhi does not constitute a cause of action in law for the purpose of the present case.
11.4 In response to said categorical assertion in para 2 of the Preliminary Objection and in response to para 13 of the Written Statement, the plaintiff has only replied that the contents of para 2 of the Preliminary Objections are wrong and denied and para 13 was combined with other paras 9 to 14 and this short reply was given:
That the contents of para 9 to 14 are wrong and denied. The measurement book as mentioned in the record of the defendant and only one set of books are maintained which is in the custody of the defendant. The defendant may be directed to produce the CS No. 16381/16 Page No. 15/24 originals of the same. The plaintiff reiterates the submissions made in the plaint.
11.5 In this regard, during his crossexamination, PW1 admitted place of work as Rajasthan where contract was executed. Nothing has been stated by the plaintiff in the plaint as to how Court at Delhi has the jurisdiction insofar as the case is concerned when main office of the company is at Mumbai and other dealings were done from Chennai. In the entire plaint, it is stated that the contract was with regard to Jaipur site.
11.6 It is pertinent to note herein that the original contract/work orders were not placed on record by either side. Plaintiff's witness was specifically asked about the same during his crossexamination to which he shifted his burden upon the defendant, wherein he stated that he has not even written any letter to the defendant calling upon them to furnish written work orders. He also added that he orally asked for the same to which he was informed that the same will be furnished once work is completed. This is to be read in the light of submissions made in para 9 and 14 of replication (quoted hereinabove) wherein plaintiff completely effaced himself from having any document with him and shifted the entire burden upon the defendant company. This aspect has to be seen in the light of another assertion made in the plaint that "necessary notices under Order XI CPC will be issued separately." Meaning thereby, the plaintiff from very beginning had contemplated that the documents would sought for by way of interrogatories but for the reasons best known to the plaintiff no such interrogatories were served nor the original terms and CS No. 16381/16 Page No. 16/24 conditions of the contract placed on record.
11.7 Again if I look at the correspondences which were exchanged, first correspondence is dated 22.12.2003 which has been marked as Mark A. In the said letter, in which the foundation for withdrawal of the NOC was made, pertinently it is not so stated as to how much amount was due and outstanding and plaintiff reiterated the fact that he had given the letter to Sh. V.K. Sharma, the accountant whereafter the bills were released. Infact, there is no payment/ money as sought for but an appointment was sought for to discuss the problems. This letter was addressed to the Regional Manager at Delhi. Again in the subsequent correspondence Ex.PW1/4, the details of the amount have not been stated. The site has been referred to as JLPL site. This trend continued in subsequent letter Ex.PW1/6 written on 09.09.2009. The first breakup came in the letter dated 03.08.2009 as to the amount outstanding. Pertinent to note herein that the earlier letters relied upon in the correspondences dated 19.07.2003, 19.08.2003, 16.09.2003, 30.10.2003 and 14.11.2003 were never placed on record. No explanation has been made as to why such letters were not placed on record.
11.8 Now these letters were sent at Delhi address of the defendant, however, copies whereof were also sent to Bombay and Chennai where Registered Office and Head Quarters are situated. Admittedly M/s L & T is a corporate entity having registered office at Bombay and Head Office at Chennai. They only have a regional office at Delhi. Some part of cause of action has to accrue at Delhi to give the Courts at Delhi the jurisdiction to deal with this issue/try CS No. 16381/16 Page No. 17/24 the suit. In this regard reliance is placed upon the judgment of Hon'ble High Court of Delhi passed in the case of "Rashtriya Mahila Kosh v. Dale View reported in 2007(4) AD (Delhi) 593". For ready reference para 22 of the same is being reproduced as under:
22. I have had occasion to deal with this issue on two earlier occasions. In a decision rendered on 4th January, 2007 in Arbitration Application No. 242/2006 Rattan Singh Associates (P) Ltd. v. Gill Power Generation Co. Pvt. Ltd. and an earlier decision rendered on 23rd December, 2005 in Writ Petition (C) No. 5133/2005 Jai Ganesh Petroleum v. Union of India and Anr., upon a careful consideration of the principles laid down in the several judicial pronouncements noticed hereinabove, so far as the accrual of the place of cause of action which would enable a court to have territorial jurisdiction to adjudicate upon a lis relating thereto, the following principles had been culled out:
(i) making and signing of a contract is part of cause of action;
(ii) parties cannot by consent confer jurisdiction on a court;
(iii) In the case of several courts having jurisdiction, parties can legally agree to exclude the jurisdiction of any of such courts and elect to restrict territorial jurisdiction to one out of such courts which otherwise has jurisdiction;
(iv) the high court must be satisfied from the entire facts pleaded in support of the cause of action that those facts which constitute the cause or are necessary to decide the dispute have wholly arisen within its territorial jurisdiction, or, in any case, which have, atleast in part, arisen within its jurisdiction;
(v) each and every fact pleaded in the petition does not ipsofacto lead to the conclusion that those facts constitute cause of action vesting territorial jurisdiction upon the court to adjudicate upon the lis;
(vi) only those facts pleaded which have a nexus or relevance with the issues involved in the lis confer territorial jurisdiction on the court;CS No. 16381/16 Page No. 18/24
(vii) in determining an objection relating to lack of territorial jurisdiction, the court must take all the facts pleaded in support of the cause of action as pleaded in the petition into consideration without embarking upon an inquiry as to the correctness or otherwise to the fact that;
(viii) A question of territorial jurisdiction must be apparent on the facts pleaded in the petition, the source or otherwise of the averments made in the writ petition being immaterial. In matters where the parties have agreed to restrict jurisdiction to one or the other court out of several courts which may have territorial jurisdiction, such clause would be enforceable only if the litigation which has arisen falls within the domain of the subject matter which is being provided in such clause. The parties may have confined jurisdiction to litigation arising only under the agreement. In such cases, the court has to arrive at a finding that the litigation between the parties was within the domain of the clause confining jurisdiction. If it does not, then the territorial jurisdiction of the court could be barred;
(ix) The court must be satisfied that all relevant facts which have merely a substantial nexus with the lis are located within its territorial jurisdiction;
(x) Even if it were to be held that a court has jurisdiction, yet guided by principles of forum nonconveniens, the court may divert the parties to the court having a closer connection with the subject matter of the litigation. Residence of parties, location of evidence, situs of the dispute and such like considerations could guide the decision of the court to this effect.
(xi) To the above, yet another principle requires to be added. It also requires to be borne in mind that a trivial or insignificant part of the cause of action arising at a particular place or where it may have incidentally arisen, would not be sufficient to confer territorial jurisdiction on the court. It is the court within whose whose jurisdiction, the cause of action has substantially or predominantly arisen which would have territorial jurisdiction to adjudicate upon the lis.
11.9 Viewing in the light of the aforesaid principles, neither contract was CS No. 16381/16 Page No. 19/24 entered into Delhi nor breach of the contract was caused at Delhi. There is nothing in the entire plaint that payment was to be made at Delhi or some part thereof i.e. last payment was made at Delhi. Infact plaintiff has not even led any evidence regarding as to from which place last payment was given/paid.
11.10 Again, it is important to note that NOC was given by the plaintiff and the NOC was addressed to the Accounts Officer, L & T, ECC Division, Jaipur.
11.11 In the light of aforesaid evidence, merely on the strength of certain correspondences being done from Delhi office in connection with other aspect i.e. works being at Jaipur and contract having been given at Jaipur and also the fact that NOC was also given to accounts officer at Jaipur from where earlier payment being made and in absence of the details of the last payment made, it is apparent that Courts at Delhi have no territorial jurisdiction to deal with the matter.
Issue no.4 is decided against the plaintiff and in favour of the defendant.
12. Now I shall take up issue Nos.1 and 2 which read as under:
Issue No.(1)Whether the plaintiff is entitled for a decree of recovery for a sum of Rs.37,03,193/ (Rs.20,12,605/ as principal amount and Rs.16,90,588/ as interest @ 12% p.a. calculated from March, 2004 to March, 2011) against the defendants?OPP Issue No.(2)Whether the plaintiff is entitled for further CS No. 16381/16 Page No. 20/24 interest @ 12% per annum?OPP 12.1 Ideally the outcome of issue no.4 should have sealed the fate of the case but since issues have been framed and comprehensively evidence led, I am deciding all issues as per the mandate of Order 14 Rule 2 CPC.
12.2 Plaintiff's case is that insofar as contract at Jaipur, certain payments remain outstanding - same were not liquidated despite repeated reminders. Last payment was made in the month of December, 2008.
12.3 Now except the correspondences relied upon, nothing else has been proved on record by the plaintiff from which the terms and conditions of the original contract could be deciphered - how much value was the contract, how much payment was made and how much payments was justifiably due/outstanding. The version of the plaintiff firm with regard to outstanding has not been admitted by the defendant company. There is nothing absolutely on record which would suggest that any amount remain outstanding. Merely by continuously harping that outstanding amounts are due or some self serving letters being issued by the plaintiff, in absence of the original contract or work orders, the plaintiff's case cannot succeed.
12.4 Furthermore, if I look at an important aspect at the time of cross examination of DW2, certain documents were put to him i.e. Mark Y. It details the amount of work done and the payment being received. Apart thereof there CS No. 16381/16 Page No. 21/24 is another document which is there on record i.e. at page no.42 to 46 of the documents filed by the plaintiff. It reads details of quantity differences in final bill (work order No.1000077). It is quite a detailed document. I fail to understand as how such a document could have been prepared in absence of the details of the contract. Secondly, the primary burden to prove the said document was upon the plaintiff and the plaintiff has not discharged the said burden. Thirdly, the stand of the plaintiff that he has not retained any document/contract does not gel with any prudent businessman particularly his following assertion which he volunteered during his crossexamination: "I myself had not written any letter to the defendant calling upon them to furnish the written work orders to me (Vol.: I had orally asked for the same on which I was told that the same shall be furnished when the work is complete).
12.5 No contractor commences the work unless the work order is placed for the reason that the scope is defined in the same.
12.6 Here, the plaintiff also suffers from the fact that he had filed the suit after 10 years from the date of completion of work. Even if the suit is not barred by limitation, obviously the best evidence i.e. original record, contract terms, MB books etc would be difficult to retrieve.
12.7 The basic edifice of the case of the plaintiff remains unproved. In absence of the terms and conditions of the original document, the liability of the defendant cannot be fixed. The plaintiff was fiercely pursing the defendant by corresponding/writing letters which also yielded result as Rs.2,78,000/ was CS No. 16381/16 Page No. 22/24 paid by the defendant company. However, insofar as judicial adjudication is concerned, those correspondences have little value in absence of the original terms and conditions of the contract and other documentary evidence.
12.8 Coming to the aspect of NOC also which is important inasmuch as the defendant's case is that the entire payment except the retention money was paid. I have quoted the NOC which has been furnished. Now obviously, the plaintiff had received payment and not protested immediately that he has been compelled to give an NOC. Once the plaintiff had received the payment after nearly one and half year, such a plea has been taken. No police complaint has been filed. No reason has been attributed towards any of the employees of the defendant company as to who had compelled the partner of the plaintiff to issue NOC. Infact DW1 Vinod Kumar Sharma was crossexamined. No question was put to him with regard to any compulsion/pressure having been exerted by the employees of the defendant company. Again at the cost of repetition, the plaintiff had received the balance payment or some payment after the NOC was given which too he has not specified or stated in the plaint neither in the affidavit by way of evidence.
12.9 I have no reasons to believe the case of the plaintiff that he had signed the said NOC on account of any compulsion.
13. The upshot of the aforesaid discussion is that the plaintiff has miserably failed to prove his case on merits.
Issue Nos.1 and 2 are decided adverse to the plaintiff.
CS No. 16381/16 Page No. 23/24Relief.
14. In view of the above findings, the suit of the plaintiff stands dismissed. Since the issue of territorial jurisdiction has been decided adverse to the plaintiff, at the earlier stage the plaint could have been returned but now since findings have been returned on all issues, the issue is accordingly ordered to be dismissed. No order as to cost.
11. Decree sheet be prepared accordingly and file be consigned to Record Room.
Announced in open court (Sumit Dass)
on 29.08.2022. Additional District Judge04
South West District, Dwarka Courts,
New Delhi.
CS No. 16381/16 Page No. 24/24