Delhi District Court
Sh. Sanjeev Gupta S/O Sh. Pawan Kumar ... vs M/S Golden Constructions (P) Ltd on 27 September, 2011
IN THE COURT OF MS. KADAMBARI, CIVIL JUDGE-III (NORTH),ROOM
NO.231, TIS HAZARI COURTS, DELHI.
Suit No.240/11
ID NO02401C0330792005
Sh. Sanjeev Gupta S/o Sh. Pawan Kumar Gupta
Proprietor of M/S Pawan Kumar Gupta & Sons.
9985/6, Swami Ram Behari Road,
New Rohtak Road, New Delhi-5.
..................... Plaintiff
Vs.
1.M/s Golden Constructions (P) Ltd.
404, Skipper Corner, 88, Nehru Place, New Delhi-19.
..................... Defendant Date of Institution:-25.04.2011 Date of arguments:-13.09.2011 Date of Judgment:-27.09.2011 Judgment
1. Vide this judgment, I shall dispose off the present suit filed by the plaintiff for the recovery of Rs.2,43,000/- against the defendant.
2. In brief the facts of the case are as under:-
(a) The plaintiff has been working as Contractor and Builder and also carries on the work of supply of heavy earth moving machinery.
Buldozors and Dumpers etc. at 9985/6, Swami Ram Behari Road, New Rohtak Road, New Delhi-110005 as sole Proprietor thereof.
(b) The defendant is also engaged in the work of construction of Buildings etc. and for that needed heavy earth moving machinery on CS 240/11 Page 1/ 8 hire basis at its place of work at KALA-AMB (Himachal Pardesh) and for that purpose the defendant had invited quotations from the suppliers for supply of heavy earth moving machineries on hire for doing work at KALA -AMB (Himachal Pardesh).
(c) The plaintiff also submitted his quotation dated 09.08.2004 for supply of Dozer D8-14A (Hydraulic) on hire charges at the rate of Rs. 1,30,000/- per month. It was also mentioned that the said Machine was to work for 26 days in a month and the Diesel supply was to be made by the defendant free of cost.
(d) That the said quotation of the plaintiff was accepted by the defendant vide letter dated 19.08.2004 sent by the defendant to the plaintiff.
(e) As per agreement between the plaintiff and the defendant the defendant had agreed to pay to the plaintiff hire charges for the above mentioned Dozer D8 14A (Hydraulic) at the rate of Rs.1,20,000/- per month and the hire charges were to be paid to the defendant to the plaintiff within 15 days of the submission of the bills by the plaintiff to the defendant for payment. It was further agreed that the said Machine was to be provided for a minimum period of at least three months.
(f) The plaintiff after receiving letter dated 19.08.2004 from the defendant, had provided his Dozer D8-14 A (Hydraulic) to the CS 240/11 Page 2/ 8 defendant on hire chargtes basis. The plaintiff submitted the following bills from 07.09.2004 to 21.11.2004 to the defendant:-
Sr. No. Bill Date Amount
1 452 07/09/2004 Rs.61,652.00
2 453 22/09/2004 Rs.60,080.00
3 454 06/10/2004 Rs.48,300.00
4 457 20/10/2004 Rs.57,304.61
5 459 06/11/2004 Rs.60,000.00
6 460 21/11/2004 Rs.60,000.00
The aforesaid bills were duly received by the defendant through its Site Supervisor Shri Jitender Setia.
(g) After receipt of the said bills the defendant paid the amount of Bill No. 452 dated 07.09.2004 by means of cheque dated 18.09.2004 after deducting TDS amount from the said bill. The defendant also paid Rs.38,990/- out of the amount of bill No. 454 dated 06/10/2004 by cheque after deducting Rs.1010/- on account of TDS and Rs.8900/- that were paid by the defendant to the plaintiff for purchase of lubricants by the plaintiff.
(h) As far as bill No. 459 dt. 06.11.2004 was concerned, the Site Supervisor fo the defendant had approved the said Bill for Rs.44,920/- in place of Rs.60,000/-. The Plaintiff agreed to the said adjustment.
(i) Even through the plaintiff had agreed to receive Rs.44,920/- in place of Rs.60,000/- in respect of Bill No. 459 still the defendant did not pay the amount of the said bill and also of Bills No. 453, 457 and CS 240/11 Page 3/ 8 460 and as such the plaintiff has to recover from the defendant Rs. 60,080/- being the amount of Bill No. 453, Rs.57,304.61 ps. Being the amount of Bill No. 457, Rs.44,920/- being the amount of Bill No. 459 and Rs.60,000/- being the amount of Bill No. 460, total Rs.2,22,304.61 ps. Which the defendant has failed to pay inspite of repeated demands of the plaintiff.
(j) As the defendant has wrongfully withheld the said amount due to the plaintiff so the defendant is also liable to pay interest @ 18% per annum to the plaintiff on the amount due from the defendant.
(k) As the defendant had not paid the said amount so the plaintiff also got issued legal notice dated 28.02.2005 through his counsel for the defendant by Regd. A.D. Post demanding the amount of Rs. 2,22,304.61 ps. Alongwith interest @ 18% p.a. As per provisions of the Interest Act also. The said notice was served upon the defendant by registered AD post as well as by a copy sent under Certificate of Posting. Despite service of the said notice the defendant neither sent any reply to the said notice nor paid any amount to the plaintiff. (3) The defendant was served with the summons for the settlement of issues and the defendant filed a written statement thereby preliminary objecting the suit being not maintainable for as the same is extremely vague, ambiguous, self contradictory and does not disclose as to on what CS 240/11 Page 4/ 8 grounds the plaintiff is seeking the relief as being prayed in the plaint and the plaint is not accordance with the provision sof sub rule (3) of Rule 2 of order VI of the Code of Civil Procedure and therefore merits rejection on this short score. The sub rule (3) makes it mandatory that the dates, sums and numbers shall be expressed in pleadings in figures as well as in words. It is avered in the written statement that in the instant case the plaintiff has not complied with the mandatory provision of sub rule (3) and therefore the plaint under reply merits rejection and the plaint under reply has not been properly verified, as envisaged under rule 15 of Order VI of code of Civil Procedure, and merits rejection on this score. Order VI Rule 15 sub rule 4 makes, it mandatory that the person verifying the pleadings shall also furnish an affidavit in support of his pleadings. It is contended in that instant case, the plaintiff has not complied with the mandatory provisions and therefore the plaint under reply merits rejection. It is also alleged by the defendant that the plaintiff has not come to this Court with clean hands and is not entitled to any relief sought for by way of present proceedings. They have fraudulently withheld important and relevant facts, which debar them from instituting the present proceedings. It is also argued by the defendant that the suit has not been properly valued for the purposes of jurisdiction and Court fees, nor has the proper sufficient court fees been paid and the plaint is liable to be rejected under order VII of rule 11 of Code of Civil Procedure.
CS 240/11 Page 5/ 8 (4) The plaintiff filed the replication to the written statement filed on behalf of the defendant whereby denying of the preliminary objections and the averments made in the written statement. The averments made in the plant are reiterated and reaffirm.
(5) From the pleadings of the parties, following issues were framed vide order dated 24.09.2006 passed by Ld. Predecessor of this court.
(i). Whether defendant has paid amounts to plaintiff as alleged in para No.3, 8 & 9 of the W.S.? OPD.
(ii) Whether plaintiff is entitled to recover suit amount with interest as claimed? OPP.
(iii) Relief.
(6) The plaintiff was examined as PW1 and relied upon the following documents:-
(a) Quotation as Ex.P-1.
(b) Letter dated 19.08.2004 as Ex.P-2
(c) Bills No. 452 and 454 as Ex.P-3 and P-4 respectively.
(d) Bills No. 453, 457, 459 & 460 as Ex.PW1/1 to Ex.PW1/4.
(e) Legal Notice dated 28.02.2005 as Ex.PW1/5 sent through post
Ex.PW1/6, UPC as Ex.PW1/7 and AD Card as Ex.PW1/8. (7) On the other hand an evidence by way of affidavit of Sh. Vipen Kumar Parwanda, who is one of the director of the Defendant Company was filed on 11.02.2010 but evidence of this witness was never tendered and DE was closed vide order dt. 04.07.2011 and defendant is proceeded Ex-parte vide order dated 13.09.2011.
CS 240/11 Page 6/ 8 Issue wise finding is as under:-
Issue No. 1
(i). Whether defendant has paid amounts to plaintiff as alleged in para No. 3, 8 & 9 of the W.S.? OPD.
The onus to prove this issues is lying upon the defendant. But the DE was closed vide order dated 04.07.2011 passed by Ld. Predecessor of this Court and for the non appearance of the defendant the defendant was proceeded Ex-parte vide order dated 13.09.2011, therefore no evidence in this respect was lead on behalf of the defendant and even no cross examination of the plaintiff was done to extract some material in order to prove these issues.
The defendant has also not suggested any thing to object locus standi of the plaintiff to file the present suit.
For these foregoing reasons this issue is decided against the defendant and in favour of the plaintiff.
Issue No. 2
(ii) Whether plaintiff is entitled to recover suit amount with interest as claimed? OPP.
The defendant has admitted that the following bills for the period starting 07.08.2004 to 21.12.2004 were raised Sr. No. Bill Date Amount 1 452 07/09/2004 Rs.61,652.00 2 453 22/09/2004 Rs.60,080.00 3 454 06/10/2004 Rs.48,300.00 CS 240/11 Page 7/ 8 4 457 20/10/2004 Rs.57,304.61 5 459 06/11/2004 Rs.60,000.00 6 460 21/11/2004 Rs.60,000.00 The plaintiff has proved that the legal notice dated 28.02.2005 was sent through registered post and UPC & the defendant also made payment against Bill N. 452 & 454 by cheque, which establish the admitted fact of commercial transaction between the parties.
For this reasons the present issue is decided in favour of the plaintiff and against the defendant.
Issue No. 3
Relief.
For the reasons stated above, the present suit is decreed and the plaintiff is entitled for recovery of Rs.2,43,000/- alongwith interest 12% p.a. As the plaintiff has not shown any document to substantiate his claim of interest at the rate of 18% per annum, therefore, as per Section 3 of Interest Act the plaintiff is entitled for the interest at the rate of 12% per annum from 25.04.2005 till the date of realization. Plaintiff is also entitled for the cost of the suit. Decree sheet be prepared thereafter. File be consigned to Record Room.
Announced in Open Court (KADAMBARI) today i.e 27.09.2011 at 2.45 pm CJ/NORTH/DELHI/27.09.2011 CS 240/11 Page 8/ 8 CS No. 240/11 27.09.2011 Present:- Ld. Counsel for the Plaintiff. Defendant already exparte.
Vide separate judgment, the suit of the plaintiff is decreed and plaintiff is entitled for recovery of Rs.2,43,000/- alongwith interest 12% p.a. Plaintiff is also entitled for the cost of the suit. Decree sheet be prepared thereafter. File be consigned to Record Room.
(KADAMBARI) CJ-03/NORTH/DELHI/27.09.2011 CS 240/11 Page 9/ 8