Delhi District Court
Central Cottage Industries ... vs M/S. Ace Engineers Bureau on 18 November, 2015
In The Court of Virender Kumar Goyal
Additional District Judge01 (East)
Karkardooma Courts, Delhi
Suit No.120/08/92
Unique Case ID No.02402C0 10674 2006
In the matter of :
Central Cottage Industries Corporation of India Ltd.
(A Government of India undertaking), having its office
at : Barracks 'A', Janpath, New Delhi .....Plaintiff
Versus
1. M/s. ACE Engineers Bureau
Engineers & Contractors
B3/26, Vasant Vihar
New Delhi110057
(Through its Partner Shri Ajay Kumar Rastogi)
2. Shri T S Sethi & Associates
Electrical Consultants
80/58A, Malviya Nagar,
New Delhi110017. .....Defendants
Date of institution : 09.12.1992
Reserved for judgment on : 22.09.2015
Judgment announced on : 18.11.2015
JUDGMENT
1. Brief facts of the case, relevant for the disposal of the present suit, are that the plaintiff has filed the suit for recovery of damages of Rs.10,41,075/ against defendants, on the averments that plaintiff is a body incorporate under Indian Companies Act, 1956, wholly owned by the Ministry of Textiles, Government of India. Sh. S C Joshi is the Managing Director/Principal Officer Suit No.120/08/92 Page No.1 of 46 of the plaintiff company who has signed, verified and instituted the present suit.
2. The plaintiff company is engaged in the business of interalia manufacturing, exporting of ready made garments, handicrafts and is having its retail show room and outlet at 'A' Barracks, Janpath, New Delhi. In furtherance of its business activities, the plaintiff company is having its various workshops and sheds in the Union Territory of Delhi and also at Noida, Distt. Ghaziabad and two of its sheds at Noida are located at Sector 2, Shed No.A36/A37 and A38 (hereinafter called CCIC Production Centre) where certain construction work, interior decoration including electrification etc. have been carried out.
3. The plaintiff company, in order to carry out certain electrical work at CCIC Production Centre, Noida invited tenders from four electrical contractors in the month of November, 1989. Defendant no.1 had submitted its tender with quotations and it was found that the rates quoted by it were consistent and it was lowest amongst the other contractors. A sum of Rs.3,55,610/ was quoted by defendant no.1 for carrying out electrification work at the aforesaid production centre.
4. The defendant no.2 who had been appointed as Electrical Consultants to control and supervise the electrical work to be carried out at the Production Centre, Noida recommended for Suit No.120/08/92 Page No.2 of 46 appointing defendant no.1 as Contractor for the project in terms of the letter dated 21.11.1989 and after considering the recommendation of defendant no.2, plaintiff company informed defendant no.1 vide letter dated 14.12.1989 that they had been selected for appointment of Contractors for carrying out electrical work, as per terms and conditions laid down in the tender and quotations furnished by them. The said defendant was also informed that before commencement of the work, they had to adhere to the high standards of work, which should be certified by the electrical consultants i.e. defendant no.2 M/s. T.S Sethi & Associates. The total work had to be finished within stipulated period of six weeks after commencement of the work with the condition that delay in work would result in cancellation of the whole contract or part of the contract and same may be awarded to another agency at their risk. The bills had to be presented to the electrical consultants for certification before payment is made. Accordingly, an agreement was executed between the plaintiff and defendant no.2 on 02.01.1990.
5. Defendant no.1 commenced electrical work w.e.f. January, 1990 and submitted its first running bill dated 16.04.1990 amounting to Rs.1,04,440/ which was certified for Rs.101038/. Defendant no.2 recommended the releasing of a sum of Rs. One Lac against first running bill. However, the plaintiff had a sum Suit No.120/08/92 Page No.3 of 46 of Rs.97840/ against first running bill after making necessary deductions amounting to Rs.2160/. Similarly, second running bill dated 11.08.1990 amounting to Rs.179183.35 was admitted by the defendant no.1 which was certified for Rs.176829.50 (ad hoc Rs.170000/). After making necessary deductions of Rs. 3672/, a sum of Rs.166328/ was paid to the defendant no.1 through cheque, who submitted third running bill dated 23.02.1991 of Rs.330010/ which was certified for Rs.326410/. A sum of Rs.78109.20 was demanded by the defendant no.1 on account of extra work done which was certified for Rs.71139.20. Thereafter, total certified amount pertaining to third running bill was Rs.397549.20. After making necessary deductions of Rs. 32641/ on account of retention money and further amount of Rs. 7882/ on account of TDS @ 2.16% a sum of Rs.357026.20 remained as certified amount of third bill. After giving credit of Rs.264168/ being total money already paid to defendant no.1 of first and second running bill, a sum of Rs.92858.20 was demanded by the defendant no.1, as per its statement of account dated 12.03.1991. The certified amount of third bill without making above deductions remained at Rs.88078.70. A sum of Rs.71139.20, as claimed by defendant no.1, on account of extra work done including dismantling, repairs, supplying and fixing of extra lighting, fixtures, fans etc. A sum of Rs.355000/ was Suit No.120/08/92 Page No.4 of 46 paid to defendant no.1 upto 21.03.1992.
6. As per tender quotations of defendant no.1, which was approved by defendant no.2, total tender amount was Rs. 355610/ on account of wiring, conduits and wiring for telephone/intercom points, cables mains and sub mains, distribution boards and panels, fixing of lighting fixtures, fans and exhaust fans and supply of lighting fixtures, fans and exhaust fans, earthing, dismantling and repairs.
7. As per contract and quotations submitted by defendant no.1 and mentioned in the list of approved make of material, which has to be used in the installation at Production Centre, Noida, the fans, bracket fans, exhaust fans etc. had to be of Usha/Bajaj/Khaitan. Out of total cost of tender amount of Rs. 355610/, defendant no.1 had quoted a sum of Rs.112710/ on account of lighting fixtures, fans and exhaust fans, as per approved list. Further a sum of Rs.19295/ was quoted on account of fixing and lighting fixtures, fans and exhaust fans, as per quotation of defendant no.1. The material used and supplied by defendant no.1 was approved and certified by defendant no.1, who were electrical consultants pertaining to contract in question.
8. In the month of November, 1991, so called Usha fans supplied and installed by defendant no.1 started creating trouble, Suit No.120/08/92 Page No.5 of 46 of which supply and installation was recommended by defendant no.2. On considering that fans are genuine, plaintiff company approached the office of Usha Fans at 1, Asaf Ali Road, New Delhi for checking and repairing, but, plaintiff got surprised on seeing that the said fans were duplicate, as certified by Usha Fans and were not genuine. Vide letter dated 27.11.1991 plaintiff addressed to Usha Fans at Surya Kiran Building, 19, Kasturba Gandhi Marg, New Delhi requesting it to issue a proper certificate to effect that the facts supplied and installed by defendant no.1 at Production Centre, Noida were duplicate and were not genuine. The manufactures of Usha Fans i.e. Jay Engineering Works Ltd., 23 Kasturba Gandhi Marg, New Delhi informed the plaintiff vide their letter dated 13.04.1992 that they had checked 33 ceiling fans of brand Usha and found them all as spurious. An inspection report was also submitted by the said manufactures to the plaintiff, who lodged a report to DCP, Parliament Street, New Delhi in terms of letter dated 19.12.1991, who also informed the plaintiff about the inspection carried out by their senior service engineer to the effected that said so called Usha Fans were spurious and sent the inspection report dated 18.12.1991 of their service engineer Sh. Madan Mohan with their letter dated 13.04.1992. The report lodged by the manufactures with the DCP is being investigated by PS Connaught Place, New Suit No.120/08/92 Page No.6 of 46 Delhi being FIR No.951/41 dated 24.12.1991 U/s 63 of Copyrights Act.
9. Similarly, defendant no.1 also supplied and installed Bajaj tube light fittings at the Production Centre and the same were specified and approved by defendant no.2. The said Bajaj electrical tube lights and fittings were also not functioning properly. The plaintiff in terms of letter dated 27.11.1991 requested the manufactures of tubelights and fittings M/s Bajaj Electricals Ltd. having their office at 1/10, Asaf Ali Road, New Delhi requesting them to verify whether said tube light fittings etc. were authentic and were of Bajaj company or not. Vide letter dated 04.12.1991 Bajaj Electricals ltd. confirmed the doubts of the plaintiff that tube lights and fittings installed by defendant no.1 at the site Production Centre were duplicate.
10. The defendant no.2 was appointed as Electrical Consultants, who was incharge of design, drawings, preparation of bills of quantity, specification and estimated cost, verification of bills and periodic site inspection etc.
11. The plaintiff in terms of their letter dated 20.01.1992 informed the defendant no.1 that electrical fittings and fans used at the Production Centre, Noida were not original and duplicate materials found used in place of Bajaj Electricals and Usha Fans and there was an electrical short circuit at the Production Centre, Suit No.120/08/92 Page No.7 of 46 Noida. The plug switches used in the electrical installation were duplicate because they used to get burnt or heated very quickly. The wiring was not of standard specification as per tender. The plaintiff requested the said defendant to replace all the duplicate materials used at the Production Centre within two weeks failing which necessary legal action shall be initiated. Plaintiff again requested defendant no.1 in terms of letter dated 27.02.1992 to replace the spurious materials from Noida Production Centre, but, in vain.
12. In terms of letter dated 06.04.1992, plaintiff informed defendant no.2 that Bajaj Electricals and Jay Engineering Works had conveyed to it that tubelights, fittings and Usha Fans respectively supplied and installed by defendant no.1 under supervision and control of defendant no.2 were found to be duplicate and spurious, thus, it had illegally received a sum of Rs.3,55,000/ towards various bills, as mentioned above and requested their comments in this regard. Defendant no.2 while acknowledging the letter of the plaintiff informed it vide letter dated 08.04.1992 that they had contacted Mr. A K Rastogi of defendant no.1 who had apologized and promised to replace the duplicate materials with genuine and also promised full cooperation with the plaintiff in this regard. Therefore, defendant no.2, the electrical consultants, had admitted the fact Suit No.120/08/92 Page No.8 of 46 that spurious items and materials were supplied to the plaintiff by defendant no.1 and that it was in their knowledge and had their approval. On the other hand, in terms of letter dated 07.04.1992, defendant no.1 refuted the charge of supplying duplicate materials. Therefore, plaintiff was compelled to cause a legal notice dated 07.04.1992 thereby calling upon the defendants no. 1&2 to pay a sum of Rs.355000/ wrongfully received by them within a week of receipt of the notice, failing which, necessary action shall by taken against them. Plaintiff called upon the defendants to replace all the fans, tubelights, fittings, fixtures etc. and other duplicate and spurious materials supplied by them at Noida, Production Centre. Despite issuing notice, defendant no. 1 vide its reply dated 12.05.1992 refuted the charge on flimsy grounds.
13. In order to assess the exact loss suffered by the plaintiff on account of supply of duplicate and spurious materials, the electrical consultants requested Mr. A P Jain, Chartered Engineer, Government Approved Valuer and Surveyor to survey and assess the loss in terms of letters of the plaintiff dated 11.04.1992 and 28.04.1992, who submitted his report dated 26.05.1992. Part II of the said report deals with loss suffered by the plaintiff on account of supply of duplicate, spurious and sub standard material, wrong consultation and advice furnished by Suit No.120/08/92 Page No.9 of 46 defendant no.2. The plaintiff has filed a separate suit against contractors M/s. Surbhee Furnishers and Decorators and Architects, M/s. Adobe Design Consultants, 22 Gyan Kunj, Laxmi Nagar, Delhi110092 for claiming damages. M/s. Adobe Design Consultants furnished recommendations pertaining to certain civil construction work at the site including work for installation of wiring and other electrification work etc. Plaintiff requested said surveyor to examine the work done in accordance with specifications and drawings of the project, the quality of work done and to specify the defects and deficiencies in the works and further whether rates of various items of works done were reasonable. The Surveyor observed that point wiring, brass bushes had to be used, but, they were not used at all. Similarly, brass screws had to be used in the point wiring while steel screws were used. The earthing was not proper. The saddles/clips provided for fixing of conduits and cables were of less thickness and were not as per specifications. The plug and sockets were to be of Crompton or equivalent make, but, they were of Versatrip, which is not even ISI approved. The work of conduit wiring for telephone was not carried out in accordance with the specifications. The cable pertaining to mains and submains were not properly earthed. The switch fuses units were not of specified make but were of Versatrip, which is also not ISI Suit No.120/08/92 Page No.10 of 46 approved. The changeover switch was of 200 Amps and it should have been of 250 Amps, as per tender item and so on. The Surveyor also observed that sealings were duplicate and not original and the matter was already under investigation of plaintiff. The Surveyor had pointed out that the foundation and cable trench for main panel of complete electrical connection was awarded at the rate of Rs.2000/ which should have been only Rs.500/ and the payment of Rs.3000/ was not justified. The general opinion of the Surveyor was that there was overall deficiency pertaining to item carried out as extra items of work and in addition to deficiency, rates paid are higher as explained herein above. Under these circumstances, plaintiff company has suffered entire loss of tender amount to the tune of Rs.355000/, as substandard and spurious items were used while carrying out work of any nature. The above material is of no use and has no value for the plaintiff, so, plaintiff is entitled to claim the tender amount from defendants no.1&2 jointly and severally, who had illegally manipulated and misappropriated the funds of the plaintiff company. The supply of duplicate and substandard material including wiring etc. cause a short circuit at the Production Centre, Noida and in fact, a huge fire also occurred at the said Centre on 12.09.1991, in which stocks and raw materials worth Rs.431563.85, belonging to the plaintiff were burnt and Suit No.120/08/92 Page No.11 of 46 lest and also caused damage to the building amounting to Rs. 150000/, furnitures and fittings Rs.75000/, machinery Rs. 25000/ and electrical fittings and installation etc. Rs.50000/. Thus, a total loss of Rs.731563.85 was caused to the plaintiff at the Production Centre alone on account of fire. Thus, plaintiff has suffered so far a loss of Rs.1041075/ on account of entire tender including tender amount of Rs.355000/ and fire amount of Rs.686075/. The plaintiff lodged the claim with the insurance company i.e. the Oriental Insurance Co. Ltd., Division Office, 16, Second Floor, Universal Buildings, 2/98, Asaf Ali Road, New Delhi2 with respect to the loss suffered on account of fire. The said insurance company vide their letter dated 29.06.1992 settled the claim of the plaintiff under policy No. 21280/0/11/92/5001 to the tune of Rs.40489/ and rejected the claim of the plaintiff on account of stocks on the ground that same were not covered under the insurance policy in the fire caused on account of bad quality of wiring and workmanship and use of the duplicate material which caused a short circuit.
14. Defendants no.1&2, who had carried out electrification work at Noida Centre, are jointly and severally liable to pay the loss on this account and also in relation to the tender money, as claimed in the suit. The plaintiff demanded a sum of Rs.9.34 lacs from the defendants vide its legal notice dated 24.09.1992 in addition Suit No.120/08/92 Page No.12 of 46 to tender money demanded in first legal notice dated 07.04.1992, but, in vain. Due to oversight and clerical error, instead of claiming Rs.686075/, plaintiff had claimed Rs.9.34 lacs as damages on account of fire alone. The claim of the plaintiff on account of fire alone is Rs.686075/. The said legal notice was duly replied by defendant no.2, wherein it has denied its liability on flimsy grounds and prayed for passing a decree against defendants no.1&2 jointly and severally of Rs.1041075/ together with pendente lite and future interest @ 24% p.a. till the date of its realization, for granting permission U/o II rule 2 CPC for claiming damages against M/s Adobe Design Consultants, 22 Gyan Kunj, Laxmi Nagar, Delhi92 with costs of the suit.
15. Summons of the suit were issued to the defendants and on completion of service, defendants had put their appearance before the court through counsel and has filed separate written statements on various grounds.
16. Defendant no.1 has take preliminary objections in its WS that suit is barred by limitations and is not maintainable in facts and laws. Replying on merits, it is averred that plaintiff company has to pay a balance payment of Rs.40549/ to the defendant no.1. Defendant no.1 had completed the work of Rs.397549.20 and final bill in that regard was submitted to the plaintiff. Receiving of letter dated 27.02.1992 is admitted by the defendant no.1, but, Suit No.120/08/92 Page No.13 of 46 the allegations are denied. Plaintiff in its letter dated 27.02.1992 had referred to alleged letter dated 20.01.1992, however, the said letter was not received by the defendant no.1, requested by letter dated 07.03.1991 to the plaintiff to send the said letter dated 20.01.1992. The said letter was later on supplied. Defendant no. 1 gave its reply to the letters of the plaintiff by letter dated 07.04.1992. The allegations of the plaintiff was false and misconceived and the same were duly refuted by the defendant vide letter dated 07.04.1996. Defendant no.1 had installed 57 numbers fans and other fitting as per conditions of the tender and and the work done by the defendant no.1. Each and every item supplied and installed by the defendant was as per tender's conditions and specifications. The said work was inspected and certified by the consultant and architect of the plaintiff. The said work including documents were duly inspected, checked and verified by the plaintiff and thereafter payments were made by the plaintiff. Even during the period of maintenance of six months, there was no complaint whatsoever. The fans and Bajaj light fittings and wiring were installed by defendant before 11.08.1990 and were in running condition by 11.08.1990. The complete work was handed over to the plaintiff on 04.03.1991. The alleged fans and electrical fittings which are allegedly duplicate does not belong to defendant no.1. Defendant no.1 had Suit No.120/08/92 Page No.14 of 46 fitted all original / genuine fitting and fans including wiring of the material. The plaintiff due to some ulterior motives appears to have illegally manipulated the things for the reasons best known to it. The notice dated 07.04.1992 was duly replied by defendant no.1 and each and every allegation was duly refuted by the defendant. Since no duplicate material was supplied or installed by the defendant, so, no question is arises to replace the same. No such Surveyor Sh. A P Jain was appointed. No notice of such appointment was given by the plaintiff to the defendant. Even the Surveyor did not issue any notice to the defendant in regard to said appointment or in regard to the proceedings for conducting the survey. The alleged survey has no weight at the back of the defendant no.1. Annexure B has not been supplied with the plaint. So, the alleged survey report Annexure B has been denied. The rates were fixed between the parties as per agreement and same could not be reviewed by anybody in any manner whatsoever. It is not possible to use electricity without proper fittings. The plaintiff had used the electricity and installation prior to 11.08.1990. The Versatrip plugs and sockets are equivalent to Crompton and they are ISI approved. All the work was carried out as per specifications and agreement between the parties. The switch fuse units were equivalent to specified make. The change over switch was of 250 Amp. The Suit No.120/08/92 Page No.15 of 46 rate of Rs.2000/ was as per contract and same was payable to the defendant. The alleged survey report is of no consequences, which is false, illegal, manipulated, invalid and same cannot be looked into for any purpose. The plaintiff has not suffered any losses whatsoever. The plaintiff has filed false and frivolous suit against defendant on false premises. No fire took place on 12.09.1991. Even assuming that any alleged fire took place, the same was caused due to negligence on the part of the plaintiff or its staff. The alleged loss due to alleged fire was never informed to the defendant. No reference was even made in letter dated 20.11.1992 and 27.02.1992 in this regard. There was no reference to the alleged loss of raw material, damage of furniture, building due to alleged fire on 12.09.1991 in the legal notice dated 07.04.1992 and the said story is an afterthought and after denying other averments, it has prayed for dismissal of the suit.
17. Defendant no.2 has take preliminary objections in its WS that there is no privity of contract between plaintiff and defendant no.2. No contract or its copy has been filed by the plaintiff showing alleged defaults / violation by the defendant no.
2. Defendant no.2 is neither a proper nor a necessary party and its name is liable to be deleted from array of defendants. The plaint has not been signed, verified and instituted by a competent Suit No.120/08/92 Page No.16 of 46 person on behalf of the plaintiff. The plaint is liable to be rejected on account of omission to add M/s Adobe Design Consultants, as defendant. The said company was issued legal notice dated 24.04.1992, as alleged in para 18 of plaint. The said company was also responsible for execution of works of plaintiff, being Civil Contractor. The payments to defendant no. 2 were also checked and approved by the said company. This court has no territorial jurisdiction or try the present suit, as contract was executed at NOIDA, UP. The suit has not been properly valued for the purposes of court fee. The alleged claims of plaintiff is separate and devisable. Accordingly, court fee is liable to be paid separately on each cause of action. Replying on merits, it is averred that defendant no.2 was never involved in tender and quotations of defendant no.1 for electrical works at CCIC Production Centre, Noida. In consultation with tender committee of plaintiff which included Mr. S C Joshi, Managing Director, defendant no.2 was required to make recommendations of the tenders and accordingly, name of defendant no.1 was recommended. Defendant no.2 was required to prepare the design drawings, bill of quantity, specification and estimated costs. It was also required to verify the bills and carry out periodic site inspection. This offer was made by defendant no.2 to the plaintiff in its letter dated 15.01.1990, which was accepted Suit No.120/08/92 Page No.17 of 46 by the plaintiff. The award of contract was made by the plaintiff in January, 1990 at its sole discretion and without any further consultation with defendant no.2. Defendant no.2 was not deciding authority in the award of the tender. Defendant no.2 was only to give evaluation of the various tenders made by various parties in respect of said contract. The final selection of the four contractors who gave their tenders was made by the plaintiff itself. Defendant no.2 scrutinized the said four tenders and gave evaluation, as required by the plaintiff. In consultation with the plaintiff, defendant no.2 made the recommendations. Accordingly, letter of appointment was made by the plaintiff. The work was carried out by the defendant no.1 as per requirements of the plaintiff. Defendant no.2 was not required to see or supervise the daily execution of the work and its quality. The agreement dated 02.01.1990 was executed between plaintiff and defendant no.1 after awarding contract in favour of defendant no.1. Defendant no.2 was not made witness or party to the said agreement. The work was executed by the defendant no.1 and periodic bills being running account were also submitted by it to the plaintiff. Plaintiff thereafter approached defendant no.2 for verification of quantities, rates and various items. Defendant no.2 as per order dated 05.01.1990, checked all the measurements at the site and specification of the items. Suit No.120/08/92 Page No.18 of 46 The payments were released from time to time at the sole discretion of plaintiff. The three running bills were partially paid. The plaintiff was deducting 10% of the running account bill towards retention money and the said amount was withheld by the plaintiff to cover the defects, if any, during the defect liability period of one year. Defendant no.2 does not admit the details of the payment made by the plaintiff to the defendant no.
1. Defendant no.2 was not informed about any deductions from the running accounts bills or the balance amounts due or payments made made to the defendant no.1. The defendant no.2 was only required to check the quantity of items and specification. The amount of payment was made by the plaintiff at its sole discretion and without consulting defendant no.2. The payments to the running accounts bills of defendant no.1 were made only after Architect M/s Adobe Design Consultants checked and verified each item, its specification, its installation, as per specification and quantity standards laid down in the contract with the defendant no.1. The certificates for payments were thus issued by the said Architect and on issue of such certificate alone, the payment was made to the contractor. The liability, if any, was of the Architect, who finally check and verify the items of the contract done by defendant no.1. Defendant no.2 only gave a list of approved make of material to Suit No.120/08/92 Page No.19 of 46 be used in the installation in the tender specification. Defendant no.2 was not required and in fact did not issue any certificate approving the material used by the defendant no.1. The defendant no.2 could only check that the material used as per the specification, but, had no means or was under no obligation to check the quality of the material used or supplied by the defendant no.1. In fact the quality of the material as recommended by the defendant no.2 was to be verified from the manufacture directly. After plaintiff made some complaints of malfunctioning to defendant no.2, it was asked to approach the manufacture directly. Defendant no.2 recommended the name of Usha/Bajaj/Khaitan to be used in the installation in tender documents. Accordingly, defendant no.1 installed fans with the make of Usha. There was no occasion or any means for the defendant no.2 to check the genuineness of the said fans or other fixtures and fittings installed by defendant no.1. Sometime plaintiff approached defendant no.2 in October, 1991 and required defendant no.2 to verify the quality of the installation of lights and fans. The defendant no.2 expressed its inability to do so, but, recommended to Mrs. Kamlesh Mehta, Manager display of plaintiff company that verification could be done from manufactures themselves since they had their own testing facility. Accordingly, plaintiff wrote letters to the manufactures Suit No.120/08/92 Page No.20 of 46 of Usha Fans and Bajaj Electricals to check and verify the quality of fittings and fans which were installed by defendant no.
1. Report dated 04.12.1991 from the manufactures of Bajaj Electrical shows that fittings were not genuine. Defendant no.2 has no information about FIR No.951/41 dated 24.12.1991 lodged by manufacture of Usha. The Bajaj Tube Lights fittings installed by the defendant no.1 were of a make, as recommended in the list of approved make of material in the tender document. Defendant no.2 could not have check the quality at the time of installation. When plaintiff complained about malfunctioning, defendant no.2 again recommended to Mrs. Kamlesh Mehta, Manager display that inspection should be carried out by the manufactures themselves. Accordingly, plaintiff carried out inspection who stated in its reply dated 04.12.1991 that tube lights and fittings installed by defendant no.1 were not genuine. Defendant no.2 was required to give the specification and make periodic inspection only under agreement. The fittings showed the name plate of Bajaj, like the fans which showed the name plate of Usha. The defect, if any, could not be checked at the time of installation by the defendant no.2. Plaintiff appointed defendant no.2 as Electrical Consultant in respect to letter of offer of defendant no.1 dated 21.11.1989. The letters dated 20.01.1992 and 27.02.1992 regarding duplicate material were Suit No.120/08/92 Page No.21 of 46 never sent to defendant no.2. Much after correspondence regarding genuineness of fittings and fixtures, plaintiff informed by its letter dated 06.04.1992 that the tube lights and fans were duplicate and spurious, so, it had asked for the comments of defendant no.2. Defendant no.2 was given a copy of reply / comments to be given to the plaintiff. Accordingly, a draft of reply was given by Sr. General Manager Sh. G P Srivastava of the plaintiff. As required, defendant no.2 issued its reply dated 08.04.1992, informing the plaintiff that contractor defendant no.1 was agreeable to replace duplicate material at his own risk and cost and what transpired between plaintiff and defendant no.1, is not known to the defendant no.2. It appears that plaintiff is taking shelter to safe guard the fall out of fire. The legal notice dated 07.04.1992 was only addressed to defendant no.1. The inspection report of alleged Surveyor has been carried out without informing defendant no.2, which is not binding on defendant no.2 and same cannot be relied upon by the plaintiff to support it false and imaginary claims. The allegations regarding filing of separate suit against contractors M/s Surbhee Furnishers and Decorators and Architects M/s Adobe Design Consultants for alleged damages are not known to defendant no.2, who is not party to the said suit. Plaintiff is not entitled to any relief U/o 2 rule 2 CPC for claiming damages against Architect for electrical Suit No.120/08/92 Page No.22 of 46 works carried out by civil contractors in alleged consultation with defendant no.2, which allegedly contributed to an occurrence of fire on 12.09.1991. The claim, if any for the alleged damages against civil contractor and architect on account of electrical works is not the liability of defendant no.2. In fact, no claim exists against defendant no.2 in respect of any of the alleged claimed by the plaintiff. There was no occasion for the plaintiff to appoint the said alleged surveyor and loss assessor, whose report is a creation of evidence by the plaintiff at the back of the defendants and its evidence cannot be pleaded in the plaint. Defendant no.2 in no way responsible for alleged claims made in the said report. The execution of the contract by the defendant no.1 was under strict supervision and control of the plaintiff. The running account bill payments to the defendant no. 1 were made after deduction of 10% retention money from bills, which was to be paid after defects liability period of one year from the date of completion of contract, which is lying with the plaintiff. The payments of running accounts bills were made directly to the defendant no.1 by the plaintiff and defendant no.2 was not entitled and it did not receive any payment in this behalf from the plaintiff. The payments were made to the defendant no. 1 after final verification of the bills of Architect M/s Adobe Design Consultants. The contract was executed directly by Suit No.120/08/92 Page No.23 of 46 defendant no.1 and there was no privity of contract between plaintiff and defendant no.2. Contact dated 02.01.1990 for execution was signed between plaintiff and defendant no.1. The legal notice dated 24.04.1992 was issued by the plaintiff to the defendants no.1&2 and also to M/s Adobe Design Consultants alleging that they are jointly and severally liable for claim made by the plaintiff. The defendant no.2 refuted the false claim of the plaintiff in the legal reply dated 12.10.1992 issued on its behalf to the plaintiff. The said legal notice is without any basis and not maintainable against defendant no.2. Defendant no.2 was appointed as consultant only. The execution of contract, purchase of material, installation and working was sole responsibility of defendant no.1 under the said agreement dated 02.01.1990 with the plaintiff. The site Supervisors appointed by the plaintiff looked after the day to day quality and progress of work at the site. They reported directly to Mrs. Kamlesh Mehta, Manager (IDS) of the plaintiff. Defendant no.2 is not liable for any defect in the alleged execution of the said contract. In any event, the Architect M/s Adobe Design Consultants was the final authority to check, verify and issue certificate of payments for the work executed by defendant no.1. Such certificates were issued by the said Architect and only thereafter the payments were made by the plaintiff to the defendant no.1. Defendant no.2 Suit No.120/08/92 Page No.24 of 46 was not even consulted at the time of making the payments of deductions. The contract was executed at Noida, UP, hence, this court does not have territorial jurisdiction to try the present suit. The name of defendant no.2 is liable to be struck off from the array of defendants and prayed that suit be dismissed with costs.
18. The plaintiff has filed the replication to the written statement of defendant no.1 and reiterated the contents of the plaint therein and denied the averments made in the written statement.
19. From the pleadings of the parties, following issues were framed vide order dated 20.07.1999 : (1) Whether the suit has been instituted and the plaint has been signed and verified by duly authorized person ? OPP (2) Whether fire took place on 5th September, 1999 on account of negligence of defendant no.1 in carrying out the electric work against the terms and condition laid down in the contract ? OPP (3) If issue no.2 decided in favour of the plaintiff, whether defendant no.2 was responsible due to his negligence in supervising the work performed by defendant no.1 which led to the fire and consequential loss ? OPP (4) Whether plaintiff is entitled to claim damages ? If so, its amount and, who is liable to pay ?
(5) Any other relief ?
20. In order to prove his case, the plaintiff has examined its General Manager Sh. B.M.Kapur, as PW1, vide his affidavit. He has reiterated the contents of plaint, in his affidavit. He has been Suit No.120/08/92 Page No.25 of 46 cross examined at length by the ld. counsels for defendant no.2.
21. The plaintiff has also examined witness Sh. A P Jain, as PW2. He has been cross examined at length by the ld. counsels for defendants. No other witness is examined by the plaintiff.
22. Whereas, the defendant no.1 has examined its proprietor Sh. Ajay Rastogi, as DW1, vide his affidavit Ex.DW1/A. He has reiterated the contents of written statement, in his affidavit. He has relied upon the documents from Ex.DW1/1 to DW1/6. He has been cross examined at length by ld. counsel for the plaintiff and also by ld. counsel for defendant.
23. Another witness Sh. T S Sethi has been examined as DW2 vide his affidavit Ex.DW2/A. He has relied upon document Ex.DW2/1. He has been cross examined at length by ld. counsel for plaintiff and also by ld. counsel for defendant no.1.
24. Sh. Inderjit Singh, Sr. Assistant, Oriental Insurance Co., has been examined as DW4, who has deposed that record pertaining to policy No.21280/0/11/92/50001 is not traceable despite best efforts. No other witness is examined by the defendants.
25. I have heard the ld. counsels for the parties and perused the record. Issue wise findings are as under : Findings on issue No.1 Whether the suit has been instituted and the plaint has been signed and verified by duly authorized person ? OPP Suit No.120/08/92 Page No.26 of 46
26. The suit has been filed on behalf of Central Cottage Industries Pvt. Ltd., a Government of India Undertaking. It has been signed and verified by Sh. S.C. Joshi, Manging Director / Principal Officer of the plaintiff company. During the evidence, the plaintiff company has failed to examine Sh. S.C. Joshi and in place of said Sh. S.C. Joshi, one Sh. B.M. Kapur working as General Manager at that time has been examined and in his examination in chief, he has nowhere deposed that Sh. S.C. Joshi, the then Managing Director was duly authorized or was competent to file the present suit on behalf of the plaintiff company. On behalf of the defendants, despite raising this issue in the WS, the witness PW1 has not been cross examined regarding authority or competency of Sh. S. C. Joshi, the then Managing Director to file the present suit, which shows that this issue has not been agitated as such. PW1 has stated that delegation of powers were given to the Chief Executive for institution of the suit in the court of law vide Ex.PW1/22. The plaint has been signed by Sh. S.C. Joshi, the then Managing Director, but still no letter of delegation of powers has been given in the name of Sh. S.C. Joshi by the Chief Executive and it is not claimed that Sh. S.C. Joshi was himself Chief Executive. Hence, it cannot be assumed that suit has been instituted, signed and verified by duly authorized person Sh. S.C. Joshi, the then Suit No.120/08/92 Page No.27 of 46 Managing Director of the plaintiff company. Accordingly, this issue is decided against the plaintiff company and in favour of the defendants.
Findings on issue No.2 Whether fire took place on 5th September, 1999 on account of negligence of defendant no.1 in carrying out the electric work against the terms and condition laid down in the contract ? OPP
27. To prove this issue, PW1 Sh. B.M. Kapur, the then General Manager has stated in para 17 of his affidavit in evidence that supply of duplicate and substandard material including wiring etc. caused a short circuit at the Production Centre, Noida and in fact a huge fire occurred at the aforesaid centre on 12.09.1991 in which stocks and raw materials worth Rs.431563.85 belonging to the plaintiff was burnt and lost, which also caused damage to the building amounting to Rs.1.50 lacs, furniture and fittings Rs. 75000/, machinery Rs.25000/, electrical fittings and installation etc. Rs.50000/ and there was a total loss of Rs.731563.85 on account of fire. He has further stated that a claim was lodged with the Insurance company with respect to the above said loss, which was settled by the Insurance company to the tune of Rs. 40489/ only and letter regarding settlement of claim issued by Insurance company is Ex.PW1/19.
28. In the cross examination, PW1 has admitted that he has no Suit No.120/08/92 Page No.28 of 46 personal knowledge about the quality of work executed by defendant no.1 in Noida project and has further stated that defendant no.2 was appointed for the said purpose. He has further stated that defects were discovered after the fire broke out and he does not remember on which date fire broke out. He does not remember whether electrical work were got replaced or not immediately after the fire broke out. He does not remember on which date, they were got replaced. He has been further cross examined. PW1 has stated that cause of fire was short circuit, but, at that time, he has stated that he cannot say in which place of production centre, short circuiting had taken place. No FIR was lodged. He does not remember whether Fire Brigade had come to the spot at the time of fire or not.
29. In further cross examination, he has stated that fire had taken place in the shed which was being used for storage. There was fire only in one shed. He has further stated that fire had spread to other sheds also but he cannot say how many fans and fitting got burnt. He has no personal knowledge as to how many sheds were damaged due to fire. The surveyor was appointed by plaintiff company. They did not give any notice to defendants before inspection by the surveyor. He does not remember on which date inspection was carried out by the surveyor. He had shown the damage sustained by the plaintiff to the surveyor and Suit No.120/08/92 Page No.29 of 46 remained with him for about three hours. There were cracks in the building and details were given to insurance company. He does not know whether any photograph was taken or not. So, from the deposition of PW1 Sh. B.M. Kapur, it is clear that according to him, the cause of fire was short circuit, but, he has failed to disclose his knowledge about the same, as to how he reached at a conclusion that fire had occurred due to short circuit in the electrical fitting.
30. The documents on which basis the plaintiff company made claim from Oriental Insurance Co. has not been placed on record and proved in any manner. Only one letter has been brought on record Ex.PW1/19, which is stated to be received by the plaintiff company, according to which, fire had taken place on 12.09.1991 in the Noida sheds of the plaintiff company and M/s. J.B. Boda Surveyors Pvt. Ltd. was appointed by the regional office of the plaintiff company to assess the loss and after receiving the survey report, they have assessed the loss to building and electrical installations, which had come to Rs.73256/ and after deducting depreciation @ 2½% per year for 7 years on average clause, the total sum was assessed to Rs.40489/. The said settlement of claim as reached out by the Oriental Insurance Co. had Rs.40489/, has not been challenged by the plaintiff company in any court of law or in any Appellate authority. The Suit No.120/08/92 Page No.30 of 46 surveyor report has also not been brought on record, so, PW1 cannot be believed to the extent that cause of fire was short circuit.
31. One another witness Sh. A.P. Jain has also been examined, as PW2 on behalf of the plaintiff company. He is Civil Engineer and is retired from CPWD from the post of Superintendent Engineer. He had inspected the premises and his report is Ex.PW2/2 dated 26.05.1992. In further examination, PW2 had stated that his true and correct report as per inspection carried out by him is Ex.PW2/2 dated 26.05.1992.
32. Ld. counsel for the defendants has contended that neither PW1 nor PW2 can be relied upon regarding inspection and the report has been procured, as according to the cross of PW1 Sh. B.M. Kapur, they remained with the Surveyor for about three hours and he had shown the damages sustained by the plaintiff company. They have also shown all the electricity fittings to the Surveyor. Whereas, according to cross of PW2 dated 25.03.2006, he did inspection of his own and all alone. He took 2/3 days to conduct the inspection for entire report. It is further contended that more so, no notice was given to the defendants prior to conducting such inspection, but, PW2 had conducted the inspection at the instance of plaintiff company, so, report cannot be relied upon in any manner and it has been procured by the Suit No.120/08/92 Page No.31 of 46 plaintiff.
33. Ld. counsel for the defendants has further contended that defect liability period in the agreement for electrical installation was 181 days and it has been admitted so by PW2 and prior to that no defect in work as done by defendants was pointed out, so, no liability can be casted upon the defendants regarding fire and it has not been proved in any manner that fire had taken place due to defect in the electrical installation that too particularly in the work done by the defendant no.1. It is further contended that PW2 has admitted that six months period is sufficient in respect of defect in electrical installation. In further cross examination, PW2 has stated that after submitting his report, he came to know that fire took place in the said building. He cannot recall the name of the said person when the fire took place. It is further contended that this shows that PW2 was not informed before survey when fire had taken place, so, the cause of fire could not be ascertained by him, being short circuit, as claimed by PW1. In further cross examination dated 03.05.2006, PW2 has stated that he does not remember if the site was damaged or showed any sign of damage when he inspected the same in April / May, 1992. The same site was with old structure, but, had been repaired. He cannot say when repair was done and by whom. The lot of civil work was done as per his report Ex.PW2/1. He Suit No.120/08/92 Page No.32 of 46 also found changes in electrical works, as per his report.
34. Ld. counsel for the defendants has contended that from this part of cross examination of PW2, it is clear that the said site had already been repaired in respect of civil and electrical works, so, it was not possible for PW2 to opine that fire had taken place due to short circuit nor he was asked in any manner in this regard. Even, he has failed to substantiate his report Ex.PW2/2 with any document. No photograph has been taken by PW2 regarding his visit of the site and report is procured one. Ld. counsel for the defendants has further contended that no samples were collected from the site nor were examined in cross with the specifications / drawings of the project. Ld. counsel for the defendants has further contended that PW2 had not consulted with any Electrical Engineer before giving his report about the electrical works and has further admitted that he is competent as Civil Engineer to give his report on electrical works also, which is false. It is further contended that according to cross of PW2, he had given his report on the basis of whatever electrical report existing and he has already admitted that he had prepared his report after repairs, so, the report is not relevant and it cannot be taken against the defendants, as no document has been placed on record, as to from whom the electrical works of repairs was got done and what types of repairs were got done after fire. In the Suit No.120/08/92 Page No.33 of 46 further cross examination dated 07.07.2006, PW2 has stated that he does not remember whether he got a written request or on telephone to conduct the survey and after going through the report Ex.PW2/1, he has stated that report was prepared on the basis of letters dated 11.04.1992 and 28.04.1992 and he does not remember whether said letters have been annexed with the report or not nor he can produce the said letters.
35. Ld. counsel for the defendants has further contended that from this part of cross examination of PW2, it is clear that it is not proved that PW2 was authorized to conduct the survey, which shows that report is false and fabricated. In further cross examination PW2 has stated that he does not have much electrical knowledge, so, he cannot say what is the meaning of TPN Isolator and for what purpose it is used in his report in para 4.7, which shows that he was not competent to conduct any survey. PW2 has also admitted that he had checked all the fans also. He does not remember the name of the person who told him that investigation of fans was being done by CCIC. He was told by somebody and he was not told that said fans were duplicate from anyone by CCIC. He has further admitted that fans were duplicate and not other electrical equipment.
36. Ld. counsel for the defendants has further contended that entire cross examination of PW2 shows that he was not having Suit No.120/08/92 Page No.34 of 46 any electrical knowledge. It is also not proved that he was authorized to conduct the survey. Even if it is assumed that survey was conducted by PW2, then, report is not proved in any manner nor defendants can be held responsible for short circuit, as the survey was conducted, as alleged, after repairing of the site and no notice was given to the defendants prior to conducting the survey, so, PW2 cannot be relied upon in any manner nor his report can be relied upon.
37. According to the report of PW2 PartII Ex.PW2/2, certain deficiencies were found in the electrical installations. The survey was conducted in the month of April / May, 1992, whereas, work was awarded in the year 1990 and prior to that fire had taken place, as alleged and thereafter repair work was also got done, so, it is not known whether duplicate fans were found to be installed against the work awarded to the defendants or later on same were fixed by the person, who had done the repair work, since completion of the work, as awarded in the year 1990. No independent survey was conducted by the plaintiff company and plaintiff company has relied upon the report of the defendant no.2, who was appointed as Consultant and work was awarded to the defendant no.1 and payment of final bill was found to be given on satisfactory work and thereafter, the fire broke out. No such short circuit or any other Suit No.120/08/92 Page No.35 of 46 incident had taken place. The cause of fire, as short circuit, has not been proved in any manner nor any FIR has been lodged nor there is any report or document to prove as to on what basis plaintiff company has claimed that fire took place due to short circuit. The document of the Insurance company regarding settlement of claim is also not disclosing anything. However, Insurance company got done survey, report of which has not been placed on record or proved in any manner, which could have shown the cause of fire and an adverse inference is drawn against the plaintiff for withholding the such important report. The plaintiff company even did not bother to summon the witness from insurance company or surveyor to prove as to what was the cause of fire. Even PW2 has nowhere opined and proved in any manner that fire had taken place due to short circuit. However, he had found certain discrepancies in the electrical installations, which even cannot be on the part of the defendants, as after fire, repair was done in both civil and electrical works. Accordingly, neither PW1 nor PW2 are inspiring confidence in any manner that fire took place on 12.09.1991 on account of negligence of defendant no.1 in carrying out the electric work against the terms and condition laid down in the contract. Hence, issue no.2 is decided against the plaintiff and in favour of the defendants.
Suit No.120/08/92 Page No.36 of 46
Findings on issue No.3 If issue no.2 decided in favour of the plaintiff, whether defendant no.2 was responsible due to his negligence in supervising the work performed by defendant no.1 which led to the fire and consequential loss ? OPP
38. As issue no.2 has been decided against the plaintiff. Hence, this issue is also decided against the plaintiff and in favour of the defendants.
Findings on issue No.4 Whether plaintiff is entitled to claim damages ? If so, its amount and, who is liable to pay ?
39. According to Ex.PW1/1, a tender for electrical installation of Production Centre for CCIC at Noida, UP was given to the defendant no.1 in the year 1989 with the details of the work and approved makes of the material used in the installation. According to the suit, defendant no.2 was appointed as Electrical Consultant to control and supervise the work. The work was commenced by defendant no.1 in January, 1990 and certain amount on account of extra work was paid to the defendant no.1 upto 21.03.1992. It is further claimed that according to the tender, defendant no.1 had to use the fans, exhaust fans etc. of Bajaj, Usha and Khaitan and in the month of November, 1991, Usha fans supplied and installed starting giving trouble. The plaintiff company considering the fans to be genuine fans of Usha, contacted its maker at their office at 1, Asaf Ali Road, Suit No.120/08/92 Page No.37 of 46 New Delhi for checking and repairing and it was reported by Usha Fans Company that the fans were duplicate, so, a certificate was obtained in respect 33 ceiling fans branded as Usha and they are found as spurious. FIR got registered also. It is further claimed that similarly, defendant no.1 supplied and installed fans of Bajaj at Production Centre and they also starting troubling and a report was obtained from Bajaj company and these fans were also reported to be duplicate.
40. During the examination of PW1, one letter Ex.PW1/10 has been exhibited, written to Mr. Anil Bhasin, Sales Executive, Bajaj Electricals Ltd, 1/10 Asaf Ali Road, New Delhi110002 dated 27.11.1991 wherein some doubts were shown about the fitting of Bajaj company. It is stated to be written by Mrs. Kamlesh Mehta, Manager (Display). The letter Ex.PW1/10 is photocopy and even it is not signed by Mrs. Kamlesh Mehta. PW1 has not been able to depose that he can identify the writing and signature of Mrs. Kamlesh Mehta. Similarly, reply has been placed on record dated 04.12.1991, according to which, after checking the fittings installed at the site, the same were found duplicate, but, this letter has not been proved by calling witness from Bajaj Electricals Ltd. in any manner. Similarly, Jay Engineering Works Ltd. had also given a complaint dated 19.12.1991 Ex.PW1/12 to the DCP, New Delhi Distt., Parliament Suit No.120/08/92 Page No.38 of 46 Street, New Delhi for registering an FIR in respect of supplying of 33 spurious ceiling fans to CCIC. But, none from Jay Engineering Works Ltd. has been examined to prove this document. Again on the basis of photocopy of both these letters Mrs. Kamlesh Mehta had written letters to defendant no.1 dated 20.01.1992 Ex.PW1/12 & 27.02.1992 Ex.PW1/13 requesting the defendant no.1 to replace all the duplicate materials used at the site within two weeks. Another letter was written to defendant no.2 dated 06.04.1992 Ex.PW1/14 by Sh. G P Srivastava, General Manager regarding his comments. Reply of Ex.PW1/12 & PW1/13 was issued on behalf of defendant no.1 Ex.PW1/15 dated 07.04.1992, wherein they had denied supplying, installing and using of spurious and duplicate materials, as alleged. Further, it was mentioned that if there was any doubt about any particular item, they could do needful according to the conditions of the contract only.
41. It is further contended that FIR, was got registered under Copyrights Act and U/s 420 IPC by Jay Engineering Works Ltd. against Ajay Rastogi i.e. defendant no.1, who had already been acquitted vide judgment dated 27.10.2014.
42. In defence, defendant no.1 has examined himself as DW1. Whereas, defendant no.2 has examined himself as DW2. In the cross examination, DW1 has stated that at the instance of the Suit No.120/08/92 Page No.39 of 46 officials of plaintiff company, he has verified the bill and after verification, only the payment was being made. The bills were also verified by defendant no.2 and after certification of defendant no.2 payment was made. He has also stated that work was supervise by staff of the plaintiff company, as well as, by the defendant no.2. DW1 has denied that fire took place due to installation of spurious material. Rather, he has further stated that he even did not know that any fire took place nor he was informed about the same by the plaintiff company. During the cross examination, DW1 has also produced the photocopy of the bills, from which, he had purchased the material i.e. 46 ceiling fans vide Ex.DW1P1, certificate of payment is Ex.DW1/P2. Another bill is Ex.DW1/P3, DW1/P4 & DW1/P5. Ex.DW1/P4 relates to 10 ceiling fans of Usha. He has further stated that he has used material as per tender and had already filed the copy of the bills. He was never called either by the plaintiff company or by the Usha Fans co. while ceiling fans stated to be spurious were checked, as alleged. He has also submitted the test certificate alongwith bill Ex.DW1/1, original of which is with IO in the criminal case file. The test certificate has been issued by Usha Co.
43. DW2 is Sh. T.S. Sethi, defendant no.2. He has stated in the cross examination that he had not come across with any such Suit No.120/08/92 Page No.40 of 46 incident wherein it was found that the material at the site are in variance with the make and specification given in the tendered document. He has denied that Usha fans installed at Production Centre were spurious. In the cross examination DW2 has further stated that plaintiff never informed about the alleged fire in the production unit. No inspection of alleged fire was offered to be done by him by the plaintiff company and no complaint was made during the contractual period or defects liability period by the plaintiff company.
44. DW4 is Inderjeet Singh, Senior Assistant from Oriental Insurance Co. According to him record of the policy on which basis claim of plaintiff company is settled, is not traceable. His further cross was deferred and thereafter he could not been further examined. Hence, his evidence cannot be looked into.
45. Ld. counsel for the defendants has heavily relied upon the reply given by the defendant no.1 vide letter dated 07.04.1992 Ex.PW1/15, wherein defendant no.1 has stated that as gesture of goodwill to their customer, they will do needful according to the contract only. However, defendants have denied that any spurious or duplicate material was installed.
46. I have gone through the contract. There is no liability clause in the contract in any manner, but, before that, the plaintiff has not been able to prove the document i.e. Ex.PW1/11 issued on Suit No.120/08/92 Page No.41 of 46 behalf of Bajaj Electricals Ltd. and Ex.PW1/12 issued on behalf of Jay Engineering Works Ltd., in which it has been claimed that electrical materials installed at the site was spurious. Both these letters are filed in photocopy and PW1 has not been able to identify the writing and signatures thereon. The originals also could not be produced for the reasons best known to the plaintiff. The letter of Bajaj Electricals Ltd. Ex.PW1/11 is addressed to Manager (Display), CCIC, who was Mrs. Kamlesh Mehta as per record. She has not been examined to prove the fact that said letter was received and was given only by Bajaj Electricals Ltd. on her letter written to Mr. Anil Bhasin Ex.PW1/10. Even letter Ex.PW1/10 dated 27.11.1991 is a photocopy and is not signed by Mrs. Kamlesh Mehta. The letter Ex.PW1/12 is given by Jay Engineering Works Ltd. to the DCP, New Delhi, Parliament Street, is also photocopy. So, both these documents are not proved by the plaintiff in any manner.
47. Hence, the contentions of the ld. counsel for the plaintiff are not forceful in any manner.
48. The ld. counsel for the plaintiff has also relied upon Ex.P8 written on behalf of defendant no.2 to the plaintiff, wherein it is mentioned that on receiving information of spurious tube light electrical fittings and Usha fans installed by the defendant no.1, they approached Mr. A.K. Rastogi two and a half months ago Suit No.120/08/92 Page No.42 of 46 and Mr. Rastogi apologized and promised to replace the duplicate material with the genuine one. This letter has been admitted by defendant no.2, but, it is hearsay. Defendant no.1 has not been cross examined on this aspect to the extent that defendant no.1 was approached by the defendant no.2 two and a half months ago and he apologized and promised to replace the duplicate material with the genuine one.
49. Ld. counsel for the plaintiff has further relied upon a letter dated 13.04.1992 stated to be issued by Sh. N.N. Tuli on behalf of Jay Engineering Works Ltd. with the photocopy of the report. The inspection was conducted regarding spurious Usha fans by Sh. Madan Mohan. Neither this letter nor inspection report has been proved in any manner. Original inspection report has also not been produced before the court, so, it is also not proved consequently that on what basis, it was opined that spurious Usha fans were installed at the site. So, the contentions of the ld. counsel for the plaintiff are not forceful in this respect.
50. In the cross examination, PW1 Sh. B M Kapur, General Manager has admitted that all the fans were removed after the fire they had got burnt. According to the documents placed on record, fire had taken place on 12.09.1991, whereas, alleged report of spurious electrical installation has been given by Bajaj Electricals Ltd. on 04.12.1991 and of Usha Fans on 18.12.1991 Suit No.120/08/92 Page No.43 of 46 i.e. afterwards the fire had taken place. It seems to be improbable that from the remaining burnt electrical articles, it could have been opined that Usha fans and Bajaj tube light fittings were spurious. None of the person, who has opined the electrical fittings as spurious, has been examined to substantiate the letters/reports.
51. PW1 has also been cross examined about Ex.P8, wherein he has denied that they drafted and got prepared the letter Ex.P8 and obtained the signature of defendant no.2 for their convenience. Whereas, defendant no.1 examined as DW1, was never confronted with this document Ex.P8. More so, DW2 Sh. T S Sethi has stated in his examination in chief in para 8 that they were informed by the plaintiff vide letter dated 06.04.1992 Ex.PW1/14 that tube lights and fans were duplicate and spurious and asked for their comments. They had given their comments vide reply dated 08.04.1992 Ex.P8 and replied that contractor defendant no.1 was agreeable to replace duplicate material at his own risk and cost and at the same time, defendant no.2 has stated that it now appears that the plaintiff is taking shelter of the alleged spurious fittings and fixtures to safeguard itself from the fall out of the fire that allegedly took place in the said premises. He has further stated that he never admitted that alleged spurious items and material were supplied by defendant no.1 to the Suit No.120/08/92 Page No.44 of 46 plaintiff or that it was in his knowledge or under his approval. At the same time, defendant no.2 while examined as DW2 has denied the contents of letter Ex.P8, which was admitted by him. In fact, according to the law, the said letter Ex.P8 is showing admission of defendant no.1 as hearsay and defendant no.2 while examined as defence witness had at the same time admitted the contents and denied that any spurious material was supplied by the defendant no.1. More so, defendant no.1 has not been confronted with the said document in his cross examination. So, the said letter Ex.P8 cannot be relied upon by the plaintiff nor admission of defendant no.2 is sustainable in any manner without any confrontation against defendant no.1 to fix the liability against the defendant no.1.
52. In view of above discussion, the plea of the plaintiff company regarding supply of spurious electrical goods i.e. Usha Fans and Bajaj Electrical fittings cannot accepted, as neither report of Jay Engineering Works Ltd. nor report of M/s. Bajaj Electricals Ltd. has been proved in accordance with the law. No witness has been summoned to prove the fact as to who had inspected the fans and electrical fittings allegedly installed by the defendant no.1 under the supervision of defendant no.2 at the site and on what basis the said fittings were found spurious. Suit No.120/08/92 Page No.45 of 46 Accordingly, the plaintiff company is not entitled for the damages in any manner. Hence, this issue is decided against the plaintiff and in favour of the defendants.
53. Relief : In view of findings on issues no.1,2,3&4, as discussed above, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to the record room.
Announced in the open Court on 18.11.2015 ( Virender Kumar Goyal ) Additional District Judge01 (East)/KKD/Delhi / 18.11.15 Suit No.120/08/92 Page No.46 of 46