Delhi District Court
Lloyd Projects Pvt. Ltd vs Ganon Dunkerley & Co. Ltd on 12 October, 2020
IN THE COURT OF SHRI NARESH KUMAR LAKA
ADDITIONAL DISTRICT JUDGE - 03, SOUTH EAST,
SAKET COURTS, NEW DELHI
CS No. 23074/16
(New No.CS DJ 10907/16)
In the matter of:
Lloyd Projects Pvt. Ltd.
Corporate office at: Punjsons Premises,
2, Kalkaji Industrial Area, New Delhi-110019
........Plaintiff
VERSUS
1. Ganon Dunkerley & Co. Ltd.
2. Mr. Narayandas Saraf, (Already dropped)
Chairman, Gannon Dunkerley & Co. Ltd.
Regd. Office at New Excelsior Buildings,
(3rd Floor), A.K. Nayak Marg Fort,
Mumbai-400001
Also at: B-228, Okhla Industrial Area,
Phase-I, New Delhi-110020
......Defendants
Date of Institution : 12.11.2013
Date of conclusion of arguments : 26.09.2020
Date of decision : 12.10.2020
Result: Suit is decreed and counter-claim is dismissed.
SUIT FOR RECOVERY OF RS. 84,62,286 AND
COUNTER CLAIM FOR RECOVERY OF Rs.12,90,922
JUDGMENT
Suit in brief The case of the plaintiff is that the plaintiff is a registered company and engaged in the business of application of Thermal Insulation and allied system. It is claimed that the branch office of defendant is situated at New Delhi from where it invited the job work for supply and application of CS No. 20374/16 (New No.10907/16) Page No. 1 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. Hot Insulation Job at the Hindustan Mittal Energy Ltd. (HMEL), Bhatinda, Punjab and the plaintiff by virtue of quotation dated 21.06.2010 had expressed interest towards execution of the said job work. It is stated that the defendant initially put an estimated cost of Rs. 82,75,000 but on inspection of the plaintiff, it was not found correct and the plaintiff claimed it to be Rs.1,88,46,827 towards of application of insulation material and the cost for supply of insulation material. The defendant accepted the said quotation vide letter of acceptance dated 07.03.2001. Thereupon the work at the site was commenced by the plaintiff on 14.03.2011.
2. It is further averred that as per clause of 'terms of payment' the payment was agreed to be paid to the plaintiff as 70% against the supply of insulation material and 25% against the application of insulation material and 5% was payable upon the completion of the contract but the plaintiff alleged that the defendant on manipulation of said clause elected to release only 70% of the running bills towards supply of material and 25% of the running bills towards application of material, thus effectively giving a mandate/authority to withhold approximately 50% of the total billing of the plaintiff. It is alleged that the defendant insisted the plaintiff to raise separate bills for supply of material and job work at site. Accordingly, the plaintiff raised various running bills amounting to the tune of Rs. 42,32,640.18 towards supply of material and running bills amounting to Rs. 55,37,188.64 for execution/application of work but the defendant made only few payments. It is alleged that due to such unprofessional behavior of the defendant, on the insistence of the plaintiff, the work order was also got amended but it was not of much effect. It is stated that lastly the plaintiff raised a consolidated bill of Rs.1,43,32,749.95 indicating separately the cost incurred towards supply of material and the cost for execution/application of the job but instead of making payment, the defendant raised many false CS No. 20374/16 (New No.10907/16) Page No. 2 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. claims. Thus the plaintiff filed the present suit for claiming the outstanding amount of 71,71,429 along with interest @ 12 % p.a. w.e.f. 12.04.2012 (total of principle and interest has been claimed as suit amount of Rs. 84,62,286).
Defence in brief and Counter-claim
3. On the first date of hearing, the defendant no.2 was dropped from the array of parties. The defendant no.1 is now referred as 'defendant' for all purposes. The defendant contested the present case by filing the joint written statement wherein it is admitted that the aforesaid work was given to the plaintiff at Guru Govind Singh Refinery, Bhatinda, Punjab but it is explained that as per the terms of payment of the work order dated 07.03.2011, 70% of the amount was to be paid against the supply of material received at the site and accepted by EIL/HEML and 25% of the amount was to be released towards application of insulation material. It was also claimed that separate bills were agreed to be raised as per terms of contract which was done by the plaintiff and after some adjustment, the defendant released a sum of Rs.42,26,684 which was duly received by the plaintiff but later on the plaintiff started raising consolidated bill for material and application cost. It is claimed that despite the fact that the bills raised by the plaintiff company were not as per the norms of the defendant company, the defendant released a sum of Rs.15 lacs.
4. On 22.12.2011 the defendant sent an amended work order to the plaintiff for the supply and application of hot insulation in order to make better cash flow generation and as per the new work order, the plaintiff was required to raise running bills for the work performed by him but the plaintiff failed to do so and also stopped brining material to the site and reduced man power. It is alleged that despite various reminders, the plaintiff did not complete the work and the defendant/counter claimant received a final bill CS No. 20374/16 (New No.10907/16) Page No. 3 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. of Rs. 1,43,32,450 but on verification by the EIL, a bill for amounting to Rs. 1,14,15,891 was passed including the bill of Rs. 63,70,205 which HMEL got executed through third party. Accordingly, as per the certified bill, the amount was payable to the defendant was Rs. 50,45,686 but the defendant had already paid Rs. 57,65,814. It is further alleged that since the plaintiff failed to complete the work, the HMEL imposed 5% liquidated damages on the defendant amounting to Rs. 5,70,794. Hence, the defendant is entitled to recover a sum of Rs. 12,90,922 (Rs. 7,20,128 being excess payment and Rs. 5,70,794 against liquidated damages charges) along with pendente lite and future interest.
Replications to the written statement and reply to the counter claim, issues and trial
5. The plaintiff filed replication to the written statement of the defendant wherein the averments made in the plaint were reiterated/reaffirmed and the allegations of the defendant were controverted. Defendant has also filed reply to the counter claim wherein the averments made in the WS were reiterated/reaffirmed and the allegations of the counter claimant were controverted. From the pleadings of the parties, following issues were framed:
1. Whether the plaintiff is entitled to recover a sum of Rs.
84,62,286 towards supply and application for hot insulation job at Bhatinda Site? OPP
2. Whether plaintiff is entitled to any pendente lite and future interest at the rate of 12% per annum? OPP
3. Whether the plaintiff has not completed the work assigned to them vide the work order dated 07.03.2011 and had left the same incomplete? OPD
4. Whether the defendant /counter claimant is entitled to a counter claim for a sum of Rs. 12,90,922 towards work CS No. 20374/16 (New No.10907/16) Page No. 4 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.
executed by HMEL at the risk and cost of defendant and towards liquidated damages imposed by HMEL abandonment of work by the plaintiff? OPD
5. Whether the defendant/counter claimant is entitled to any pendent lite and future interest @ 18%? OPD
6. Whether the defendant was entitled to set off admitted amount of plaintiff? OPP
6. In order to prove its case, the plaintiff examined witnesses, namely, PW-1 Sh. Rakesh Saxena, PW2 Shri J.N. Dubey, Site In-charge of the Plaintiff and PW3 K.S. Kapoor. To defend the case, the defendant led its evidence by examining DW1 Shri Naveen Kumar and DW2 Shri Manish Bhati.
7. I have heard arguments from Sh. Raman Gandhi, Ld. Counsel for plaintiff and Sh. Jitender Ratta, Ld. Counsel for the defendant. Record perused.
REASONS FOR DECISION Issue no. 1: Whether the plaintiff is entitled to recover a sum of Rs. 84,62,286 towards supply and application for hot insulation job at Bhatinda Site? OPP Issue No. 3: Whether the plaintiff has not completed the work assigned to them vide the work order dated 07.03.2011 and had left the same incomplete? OPD Issue No. 4: Whether the defendant /counter claimant is entitled to a counter claim for a sum of Rs. 12,90,922 towards work executed by HMEL at the risk and cost of defendant and towards liquidated damages imposed by HMEL abandonment of work by the plaintiff? OPD (The aforesaid issues are inter-connected with each other, therefore, they are being decided together).
CS No. 20374/16 (New No.10907/16) Page No. 5 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.
8. From the pleadings on record and the affidavit of admission/denial of documents, it is primarily seen that no dispute has been raised with regard to issuance of any document or correspondence or invoices, which are filed on record by the plaintiff except that a plea has been taken by the defendant that contents of the documents of the plaintiff are disputed. It is a settled proposition of law that once a document is acknowledged to have been received, the plea with regard to challenging the contents is required to be proved by the party who assert such dispute. Therefore, heavier onus lies upon the defendant than the plaintiff. As per the initial quotation and contract, the work was awarded to the plaintiff at the cost of Rs. 1,88,46,827 which has been duly reflected in the bill of quantity attached with the letter of acceptance dated 07.03.2011. The terms of payment were to the effect that 70% of the amount will be given towards supply of insulation material and 25% towards application of insulation material (which includes labour charges) and 5% to be retained by the defendant which will be payable upon completion of work.
9. At the outset, the plaintiff raised disputes about issuance of separate bills and interpretation of the said term of payment but since separate bills were issued by the plaintiff itself, the said plea stands waived off or agreed as per the principle of acquiescence. The record reveals that five bills were issued by the plaintiff for supply of the insulation material during the period from 09.05.2011 to 22.09.2011 to the defendant for the total amount of Rs.42,32,640. Likewise, two separate bills were issued towards execution/erection/application charges which were to the tune of Rs. 27,35,744 and after calculation of the aforesaid two amounts, the payment was assessed as Rs. 55,37,188, out of which the defendant has paid Rs. 42,26,614. Thereafter, the plaintiff sent various letters dated 21.11.2011, 06.12.2011 and 09.12.2011 demanding the payment of further CS No. 20374/16 (New No.10907/16) Page No. 6 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. due amount but neither said payments were made nor any reply was received from the defendant disputing the said demands. However, a payment of Rs. 15 lacs was released subsequently in January, 2012 thereby, the total amount received by the plaintiff comes out to be Rs. 57,26,614.
10. As per plaintiff, the work continued to be performed and at the same time consistent demands were raised for payment of the due amount but the same were not paid by the defendant. Ultimately, the plaintiff sent a consolidated bill dated 12.04.2012 claiming an amount of Rs.1,43,32,749 plus service tax of Rs.6,41,685 towards the supply of material and application charges. (It is seen that the service tax has been assessed twice, therefore, this amount of Rs.6,41,685 will not be considered). However, the defendant claimed deduction of an amount of Rs.20,76,393 towards aluminum supplies which were procured from the side of the Principal/defendant and other charges. The plaintiff candidly admitted the deduction of the amount of Rs.20,76,393 but disputed the other charges.
11. After deducting the said amount and the aforesaid previous payments, the plaintiff claimed the remaining amount of Rs.71,71,429 along with interest @12% w.e.f. 12.04.2012 thereby assessing the total suit amount at Rs.84,62,286 as on the date of the filing of the suit.
12. On the other hand, the defendant outrightly disputed the aforesaid claim of Rs.1,43,32,749 vide plaintiff's letter dated 12.04.2012 (Ex.PW1/5) and rather a separate statement of account (Ex.P7) was sent by the defendant to plaintiff vide an email dated 17.08.2012 (Ex.PW1/14) wherein the defendant shown its own calculations and after deducting amounts under different heads, the defendant claimed Rs.7 lac plus due CS No. 20374/16 (New No.10907/16) Page No. 7 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. from the side of the plaintiff along with subsequent damages as imposed by the principal in the form of its counter-claim.
13. Relying heavily on the statement of account (Ex.P7), the Ld. counsel for the defendant argued that the plaintiff has not brought on record any evidence to prove the factum of actual expenses towards the material supplied and the application charges and he also claimed that mere raising of bills will not entitle the plaintiff to claim such amounts. The record reveals that even the defendant has also not placed on record any supporting documents to prove its own claims as shown in the calculation sheet/statement of account (Ex.P7) which was sent vide email dated 17.08.2012, therefore, the same argument apply to the defendant also but while appreciating the evidence, it is a settled law that an admission or acknowledgment of fact of a party can be considered against the other.
14. It is also pertinent to mention that the work contract was amended in the meantime vide letter dated 22.12.2011 but the said document does not appear to be significant or relevant since no payment was released thereafter and from the assessment of over all evidence, this court is of the considered opinion that the disputes travel around the following three points which are appreciated in separate category:
(i) The claim of the plaintiff towards the material supplied (70%)
(ii) The claim of the plaintiff towards the application charges (25%) and retention amount (5%)
(iii) The claim of the defendant towards deficient service of the plaintiff, incomplete performance of contract, delay and other stands.
(i) The claim of the plaintiff towards the material supplied (70%)
15. As regards the material supplied by the plaintiff to the CS No. 20374/16 (New No.10907/16) Page No. 8 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. defendant, the consolidated bill of the plaintiff dated 12.04.2012 specified the amount of Rs.91,41,119 and the statement of account (Ex.P7), sent by the defendant to the plaintiff also indicated the amount towards supply of material as Rs.91,04,039. Therefore, it is evident that there is a dispute of only some nominal amount. The DWs examined on behalf of the defendant tried to raise some disputes on the said aspect but keeping in mind their contradictory stands and the fact that more credence should be given to the documentary evidence than the oral deposition of the witnesses, this court holds that the amount as shown by the defendant in Ex. P-7 as Rs. 91,04,039 towards the material supplied by the plaintiff stands proved.
(ii) The claim of the plaintiff towards the application charges (25%) and retention amount (5%).
In the final bill dated 12.04.2012, the plaintiff has claimed amount of Rs.51,91,630 towards the application charges on the other hand, in the statement of account (Ex.P7), the defendant has shown Rs.19,26,543 towards the application charges. Thus, apparently it shows that there is a huge difference in the calculation of the said two amounts. As per the terms of the payment, 70% amount was payable towards supply of material and 25% towards application charges and the remaining 5% was payable at the completion of work. The plaintiff has not shown any bifurcation of 5% amount but claimed completion of job work by filing final bill. The defendant has however shown separate amount of 5% in Ex.P7 as Rs. 3,93,172 (3,85,308 after discount of 2%).
16. In the amount of Rs. 51,91,630, the plaintiff has also included the amount of Rs 5,71097 towards service tax @ 12.36% whereas the defendant has not included any such tax. If the amount of the defendant @ 25% and 5% are aggregated, it comes out to be Rs. 23,11,851 (i.e. Rs.19,26,643+3,85,308) and if the amount of service tax of the plaintiff is CS No. 20374/16 (New No.10907/16) Page No. 9 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. deducted, it comes out to be Rs.46,20.533. The final disputing amounts are Rs.23,11,851 and Rs.46,20,533.
17. On a court query raised by this court as regards the evidence produced to prove the said amount of Rs.51,91,630 (now Rs.46,20,533), the Ld. counsel for the plaintiff has drawn my attention to the list of the amount spent towards the application charges i.e page no.11-12 which shows total amount of Rs.19,16,623 and page no.9 and 10 which shows total freight charges as Rs.6,86291 and total of both the said amounts comes to Rs.26,02,914.
18. So as far as documentary evidence is concerned, the plaintiff could only prove Rs.26,02,914. However, the Ld. Counsel for the plaintiff has pointed out the specific admissions in the testimony of DW1 and DW2.It is a settled position of law that 'evidence' as defined in the Indian Evidence Act, 1882 does not mean only the documentary evidence but it also includes the oral evidence. The Chapter on Relevancy of Facts in the Indian Evidence Act, 1882 also indicates various parameters which come within the category of circumstantial evidence and most important amongst them, inter alia, is the conduct of the party at the contemporary time. Besides it, admissions of facts, direct or implied, are very significant. For deciding the dispute, this court is required to analysis all the aforesaid elements to arrive at just decision. The civil disputes are decided on the basis of preponderance of probabilities and the following evidence tilts in favour of the plaintiff:
1) The initial value of the work was conveyed by the defendant as Rs.82.75 lakhs but the price schedule of the letter of acceptance dated 07.03.2011 shows the total amount of contract as CS No. 20374/16 (New No.10907/16) Page No. 10 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.
Rs.1,88,46827. When a specific question (Q21) was put during cross-examination to DW1, he admitted that the value of the work was enhanced when they went to the site, upon re-calculation of the quantities as per the drawings of the EIL. The amount for the work done has been claimed by the defendant from the principal at Rs. 1,53,26,731. The witnesses of the defendant claimed that the said amount includes the commission charges and enhanced rate of defendant but what is those charges or rates have not been disclosed anywhere. The defendant has also failed to prove the completion of the alleged left-over work of the plaintiff performed by any third party or agency since no independent witness of the said third agency/party has been examined by the defendant.
2) Although the plaintiff could produce the supporting documentary evidence to the extent of Rs.26 lakhs but in the final bill, it has been claimed as Rs.46,20533 (excluding service tax) but when specific questions were asked to the DW1 and DW2, they admitted (directly or impliedly) the calculation of the plaintiff which is reflected from the following depositions:
"DW1. Q43. Can you tell for how much actual amount, the work of insulation was actually done at the site? Ans. Approximately Rs.1.4 to Rs.1.45 crores. Vol. the exact amount my Accounts Department will confirm."
"DW2. Q57. As per Ex.PW1/5, the value of material supplied by the plaintiff for the works was Rs.91,41,119 and labour charges was Rs.51,91,630. Is this correct?
Ans. No I cannot say, as the site would show the details about the calculation. Vol. This bill is not certified by the site."
Q.79 After April, 2012 when this bill was raised, did your heads i.e. Mr. P.N. Singh or Mr. Subroto Sarkar or the Site Incharge inform the plaintiff that this Bill was not correct as per them?
CS No. 20374/16 (New No.10907/16) Page No. 11 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.
Ans. No, I don't have any information in this regard.
Q80. Was the Legal notice dated 13.09.2012 i.e. Ex. PW1/15 delivered to your office? (Witness is shown Ex. PW1/15). Ans. As per the stamp affixed thereon, it seems that the same was delivered to our office."
3) There is no counter-letter or reply protesting the demands of the plaintiff except letter dated 13.08.2012 but from the perusal of the same, it is evident that it does not provide any specific details and thus it cannot be relied in the absence of any further evidence, which has not been led.
4) The Ld. Counsel for the plaintiff has also demonstrated an arithmetical analogy that if the 70% amount of the plaintiff is established on record as Rs. 91,41,119, the remaining 30% amount (i.e. 25% towards application charges and 5% towards retention charges) can be worked out by calculating 30% of Rs.1,43,32,749 which he assessed as Rs.42,99,824 and thus he argued that this amount is nearer to Rs.46,20,533. In my considered opinion, the calculation of the amount should not be done in that manner but it can be logically worked out as per the term of payment in the manner, i.e. 70% amount towards supply of material and 30% remaining amount (i.e. 25% towards application charges and 5% as retention amount). So we have to find the value of 'X' amount whose 70% is Rs.92,89,835 (without discount as shown in Ex.P7 by the defendant itself) and thereafter calculate the remaining 30% of 'X' amount. Applying the said formula, the value of 'X' comes out as Rs.1,32,71,192 and its 30% comes out as 39,81,357.
5) As per the agreed term, after deducting discount of 2%, the value CS No. 20374/16 (New No.10907/16) Page No. 12 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.
of Rs.39,81,357 comes out as Rs.39,01,729.
19. Thus, in the light of aforesaid evidence and circumstances, the plaintiff is held entitled for the amount of Rs.39,01,729 towards the application charges and 5% retention amount. In the letter of acceptance, it has been specifically agreed that the plaintiff will pay all the taxes except the service tax that means it is payable by the defendant. The plaintiff has claimed service tax @ 12.36 % and on the aforesaid rate, it comes out to be Rs.4,82,253 on the said amount of Rs.39,01,729 and total of both comes out to be Rs. 43,83,982. Therefore, the plaintiff is entitled for total Rs.43,83,982 on this count. The plaintiff is, however, duty bound to pay the said service tax to the concerned tax authority, if not paid already, upon realization of the amount from the defendant.
(iii) The claim of the defendant towards deficient service of the plaintiff, incomplete performance of contract, delay and other stands.
20. In the Ex. P-7, the defendant has shown deduction of Rs. 20,76,393 towards aluminum sheet issued from Navbharat for piping insulation. The said amount has already been admitted by the plaintiff in the plaint which can be deducted from total outstanding amount. Accordingly, there does not survive any dispute on the said amount.
21. As regards the amount of Rs. 34,14,395, it has been shown towards shortages of the antennary items due to M/s Llyod Project, materials supplied by M/s Thermocare. There is also another amount of Rs. 8,79,416 which has been claimed by the defendant towards left over works of pipes related to unsited job and job works carried out by M/s Himanshu. The onus to prove the aforesaid claims was upon the defendant only. The record reveals that despite sending various communications and repeated CS No. 20374/16 (New No.10907/16) Page No. 13 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. reminder towards release of payment, the defendant did not send even a single reply raising any protest or citing any specific dispute to counter the claim of the plaintiff except belated letter dated 13.08.2012. The defendant is not a layman but a well established organization and by this conduct, it shows that they have impliedly accepted the performance of the contract by the plaintiff.
22. As per the terms of the payment of initial contract, the defendant was supposed to make payment of 75% of the material supplied at site and 25% towards application charges but the complete payments were not made despite various request and demands of the plaintiff nor any protest was raised to dispute the same. For successful execution of any contract, the flow of payment is an essential component and if the defendant did not pay attention to such essential aspect, the plaintiff cannot be blamed for any delay in work though it has not been proved on record. It is also seen that the defendant permitted the plaintiff to take away its good which were carried in three trucks vide goods receipt issued by the defendant dated 16.06.2012, 06.07.2012 and 13.07.2012. Had there been any dispute, the defendant would not have allowed the plaintiff to take way the said goods.
23. The defendant issued one letter on 13.08.2012 (wrongly written as 13.02.2012) wherein for the first time, the defendant asked the plaintiff to submit the bills after certification. As regards certification, the plaintiff claimed it to be the internal process between the defendant and the principal but despite that, the plaintiff pursued the matter with HMEL (Principal) which refused to issue any certificate by saying that it is the job of the defendant and they have no concern with the plaintiff. Therefore, the plea of certification as taken by the defendant is not acceptable.
CS No. 20374/16 (New No.10907/16) Page No. 14 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.
24. Another plea was taken that the plaintiff removed or reduced its work force from the site but it is seen that in the letter dated 06.12.2011, the plaintiff had specifically claimed that due to major funds block and non- bifurcation of the rates of Rockwood and Cladding and labour charges, the labour bills were not cleared and consequently, the contractor reduced his workforce. As such the aforesaid plea of the plaintiff is justified for reducing the workforce and moreover, the Principal has also provided the labour services at their own cost which has been reflected in the said letter. It also came on record that the defendant has taken 1.53 cores from the Principal towards execution of the said work which has been awarded to the plaintiff and it shows that there was no fault of the plaintiff though it is claimed that some work was got completed from some third agency but the defendant did not prove the said fact by examination of any witnesses of said third agency or producing any invoices or bills which were claimed to have been issued by the said agency or paid by the defendant. As such the said pleas are not proved on record.
25. Moreover, it is settled proposition of law that if a contract is given to a particular contractor, such contract continues to be subsisting until it is terminated or canceled or modified by the contracting parties after giving a notice. If the defendant had any complaint about the work performance of the plaintiff or delay, it should have been brought to its notice by issuance of written letter or communication but no such steps were taken. It is also well settled that before engaging any third party to perform incomplete work, a prior notice and sufficient time is required to be given to the original contractor (i.e. plaintiff in the instant case) but no such steps were taken by the defendant nor any evidence is produced on record in this regard.
CS No. 20374/16 (New No.10907/16) Page No. 15 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.
26. No specific details of said third party agency has been disclosed in the written statement. The DWs examined by the defendant took a stand that it was got completed from the Principal itself although no such evidence has been produced in this regard and even otherwise it is a contrary stand from the WS which says 'third party'.
27. Ld. counsel for the plaintiff has also contended that the defendant in its subsequent letter, on the one hand, sought the bills dully certified at the site from the plaintiff and, on the other hand, claimed Rs.10 lakh as recovery from the side of the plaintiff and he raised a question how is it possible that when the bills were not with them, then the amount of Rs.10 lakh was assessed to be due from the side of the plaintiff. I find substance in the said submissions.
28. In the light of aforesaid discussion and evidence produced on record, this court holds that the defendant failed to prove the aforesaid claims or the stands of the counter-claims. In result, the aforesaid three issues are decided in favour of the plaintiff and against the defendant by holding that the plaintiff is entitled to the recovery as calculated below:
Towards supply of material (70%) Rs.91,04,039
Towards application charges and Rs.43,83,923
retention charges (30%)
Total Rs.1,34,87,962
Deductions
Towards admitted aluminum supply Rs.20,00,000
Amount already received Rs.57,26,614
Total Rs.77,26,614
CS No. 20374/16 (New No.10907/16) Page No. 16 of 18
Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.
Final calculation
Plaintiff's amount Rs.1,34,87,962
Deductions Rs.77,26,614
Plaintiff's entitlement - Total Amount Rs.57,61,384
Issue No.2: Whether plaintiff is entitled to any pendente lite and future interest at the rate of 12% per annum? OPP
29. As the transaction was commercial in nature, the plaintiff is awarded the reasonable interest @ 10% p.a. on the amount of Rs. 57,61,384 from the date of final bill i.e. 12.04.2012 till the date of realization. This issue is accordingly decided in favour of the plaintiff and against the defendant.
Issue No. 5: Whether the defendant/counter claimant is entitled to any pendent lite and future interest @ 18%? OPD
30. In view of my findings on the previous issues, the defendant is not entitled to any interest. This issue is accordingly decided against the defendant and in favour of the plaintiff.
Issue No.6: Whether the defendant was entitled to set off admitted amount of plaintiff? OPP
31. In view of my findings on the previous issues, the defendant is not entitled to any set off and the amount of Rs.20 lakhs has already been deducted in the relevant issue. This issue is accordingly decided against the defendant and in favour of the plaintiff.
Conclusion/Relief
32. In the light of aforesaid findings, the suit of the plaintiff is decreed whereas the counter-claim is dismissed. A decree is passed in CS No. 20374/16 (New No.10907/16) Page No. 17 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd. favour of the plaintiff and against the defendant for recovery of Rs. 57,61,384 along with interest @ 10 p.a. w.e.f. 12.04.2012 till the date of realization on the said amount. In the circumstances of the case, cost of the suit is awarded to the plaintiff as per rules. Decree-sheet be prepared accordingly. Thereafter file be consigned to record room.
Announced & dictated in the open court on 12.10.2020 (Naresh Kumar Laka) Additional District Judge-03 South East District, Saket Courts, New Delhi.
CS No. 20374/16 (New No.10907/16) Page No. 18 of 18 Lloyd Projects Pvt. Ltd. vs. Gannon Dunkerley & Co. Ltd.