Delhi District Court
Sh. Sanjay Tuli vs M/S Shrankhala on 10 February, 2020
CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No. 1803 / 2013 (16966 / 2016)
1. Sh. Sanjay Tuli
Prop. Of M/s Tuli Incorporates,
R/o E158, Sector 41, NOIDA,
UP 201301
..... Plaintiff
VERSUS
1. M/s Shrankhala
Through its Proprietor
Smt. Sadhna Vashisht
a. R/o H. No. H365, Niti Khand 3rd,
Indrapuram, Ghaziabad,
UP 201 010
b. Regd. Office :
34/1, Neelkanth Apartment,
Near MTNL Office, Mehrauli,
New Delhi - 110 030
c. House No. 7/394B
Ganga Vihar, Gokalpuri,
Delhi
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CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020
2. Larsen & Toubro
Site Manager,
White House,
Terminal3, IGI Airport,
New Delhi
..... Defendants
Date of Institution of Suit : 05.05.2011
Date of reserving judgment : 06.02.2020
Date of pronouncement : 17.02.2020
Appearance:
(i) Sh. Dilawar Singh, Advocate Ld. Counsel for the plaintiff
(ii) Ms. Sujata Roy Ayde, Advocate Ld. Counsel for the
defendant no. 1
SUIT FOR RECOVERY OF RS. 6,80,000/ (RUPEES SIX LAKHS
EIGHTY THOUSAND ONLY)
J U D G M E N T:
1. The present suit has been filed by the plaintiff against the defendant seeking recovery of Rs. 6,80,000/ (Six Lakhs Eighty Thousand Only)
2. Relevant facts as emanating from the plaint, giving rise to the cause of action in favour of plaintiff, for filing the present suit are that :
(i) It is averred that plaintiff is in the business of interiors, exhibitions etc. being a specialist in turnkey project and is known for his quality and prompt service and doing the Page No. 2 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 business under the name and style of M/s Tuli Incorporates.
The plaintiff is the proprietor of M/s Tuli Incorporates. Defendant No. 1 got a sub contract of "Closure of opening in PTB & Pier in construction of New Terminal (T3) at Indira Gandhi Airport, New Delhi from the defendant No. 2 with a specific restriction clause of non subletting the aforesaid contract to any other subcontractor.
(ii) It is averred that defendant no. 1 did not have the knowledge to proceed with the work of contract, hence the plaintiff was assigned/sublet a part of the contract of approximately 250 sq. mtrs. area and the plaintiff was instructed to furnish the raw material to the defendant no. 1 for the execution of the rest of the contract. It is averred that the plaintiff successfully completed the assigned/sublet contract/work and got the same satisfactorily inspected by the officials of defendant no. 2 in almost eleven inspections on 05.06.2010, and the original inspection sheets are still with plaintiff. Apart from the execution of the aforesaid part of subcontract, the plaintiff had also supplied raw material of Rs. 2,50,000/ for which, the plaintiff has raised appropriate invoice, but payment of the said raw material is still outstanding.
(iii) It is averred that the plaintiff after successfully completion as well as satisfactorily inspection of the work had raised the bill of Rs. 4,30,000/ dated 17.06.2010 and same had been still outstanding. Despite, the best efforts and repeated Page No. 3 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 reminders as well as requests by plaintiff, the defendant no.1 has failed to make the payment and kept delaying the payment on one pretext or the other. It is averred that thereafter the plaintiff demanded several times from the defendants the total amount, which comes to Rs. 6,80,000/, however, the defendants always kept pending the matter on one pretext or the other, but despite several repeated requests, the defendants did not make the payment with interest to plaintiff. The plaintiff also issued a legal notice through his counsel dated 01.07.2010 by Speed Post and U.P.C. which has been duly served upon the defendants, but despite service of the notice, the defendants neither replied the said notice nor made the payment with interest till date. Hence, this suit.
3. After filing of the suit summons for settlement of issues were issued to the defendants. Defendant no. 1 appeared and filed its written statement and, inter alia, submitted that the suit plaintiff is not maintainable as framed in as much as he is guilty of concealment of true and material facts, and as such is not entitled to get any relief. The defendant no. 1 got a sub contract of work of "closure of opening in PTB & PIERS" from the defendant no. 2, therefore, in order to complete the contract work of "closure of opening in PTB & PIERS" the defendant no. 1 further assigned the said work to plaintiff for the area around 1100 sq. mtrs. @ Rs. 2000/ per sq. mtrs. in construction of new terminal (T3) at IGIA, Page No. 4 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 New Delhi. The plaintiff gave his acceptance for the said assigned work, and plaintiff also gave his assurance regarding the completion of the assigned work up to the satisfaction of defendant no. 2.
4. It is further submitted that the plaintiff is only entitled for the payment of completed work which is duly certified and endorsed by the Qualityincharge of the defendant no. 2. The Inspection Request is prepared by the two persons regarding the work completed namely (i) Siteincharge, who measures the work completed and (ii) Qualityincharge, who certifies the quality of the work completed as per the specified norms. After the satisfactory endorsement by both the said officials of the defendant no. 2 i.e. the Qualityincharge and Siteincharge on the Inspection Request, only then the person who carried out the work assigned to him is eligible for the payment for the same. As per the Inspection Request filed by the plaintiff himself, the plaintiff has completed only 12 sq. mtrs. 0f work assigned to him, which is duly checked by the Qualityincharge of the defendant no. 2, for which he had already received the payment.
5. It is further submitted that as per the Inspection Request carried out by the Qualityincharge of defendant no. 2, the plaintiff failed to complete the work assigned to him up to the satisfaction of the Qualityincharge of defendant no. 2. The Page No. 5 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 Inspection Request on record evidently shows the plaintiff was directed to rectify the work done by him in accordance with the terms and conditions of the work assigned to him, which he failed to do miserably and left the assigned work uncompleted/ un rectified, despite the repeated requests made by the defendant no.1. The defendant no. 1, in order to save the reputation of the company of the defendant no. 1, made the requisite arrangements for the rectification/completion of unsatisfactory work done by the plaintiff at its own cost. The plaintiff has tried to bring a bad name for the defendant no. 1 in the market.
6. That the suit of the plaintiff is an abuse and misuse of the process of law, and further the same being actuated with malafide intentions is liable to be dismissed with exemplary cost in as much as the present suit has been filed just to harass defendant no. 1, knowingly well that defendant no. 1 cannot be made liable for the wrongful acts/conduct of the plaintiff as mentioned above, and the plaintiff cannot take advantage of his own wrong as he has not done the work up to the satisfaction of the defendants as per the specified norms provided to him. Hence, the present suit against the defendant no. 1 is not at all maintainable, and is liable to be dismissed.
7. It is further submitted that plaintiff has not worked up to the satisfaction of the Qualityincharge of defendant no. 2 as Page No. 6 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 per the inspection request in as much as the plaintiff is eligible/entitled for the payment against the work done successfully up to the satisfaction of Qualityincharge of defendant no. 2. However, as per the Inspection Request the plaintiff has successfully completed only 12 sq. mtrs out of the 1100 sq. mtrs of work assigned to him, to the satisfaction of Qualityincharge, and, therefore, the plaintiff is entitled of the payment for the same, because as per the terms and conditions the bill can be raised against the completed work only after getting the endorsement of the Qualityincharge as well as the Site Engineer collectively. The plaintiff is not entitled for the bill of Rs. 4,30,000/ as the same is illegal, vague, baseless and without any substance. The defendant no. 1 is not at all liable to pay any amount as claimed.
8. Defendant no. 2 has also filed written statement wherein, interalia it is submitted that the suit of the plaintiff is liable to be rejected under Order VII Rule 11 (a) CPC as the suit did not disclose any cause of action. The defendant no. 1 was awarded a contract by defendant no. 2 with a specific restriction Clause against further sub letting to any other sub contractor. It is not even the case of the plaintiff that there is privity of contract between the plaintiff and defendant no. 2. It is manifest from the plaint and the documents filed therewith that there were no dealing between plaintiff and defendant no. 2. It has also been submitted that there is no privity of contract between the plaintiff and defendant no. 2 as defendant no. 2 is neither a necessary nor a Page No. 7 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 proper party and plaintiff has impleaded defendant no. 2 just to harass defendant no. 2 therefore, suit deserves to be dismissed.
9. Plaintiff has filed replication to the written statement of the defendants thereby denying all the allegations levelled in written statement and has reiterated its allegations levelled in the plaint.
10. On the basis of pleadings of the parties, following issues were framed vide order dated 18.02.2016 :
1. Whether the plaintiff is entitled to the suit amount of Rs.
6,80,000/ as prayed for ? OPP
2. Whether the plaintiff is entitled to the interest @ 24% per annum as prayed for ? OPP
3. Relief.
11. Thereafter, matter was listed for recording of plaintiff's evidence. In support of his case, the plaintiff has examined Smt. Kavita their mother/legal guardian as PW1 who has deposed on affidavit Ex.PW1/A and relied upon documents :
(i) Copy of closure of opening report is Ex. PW1/1,
(ii) Copy of Tax Retail Invoice is Ex. PW1/2,
(iii) Copy of the General terms and conditions is Ex. PW1/3,
(iv) Copy of the description of work is Ex. PW1/4,
(v) Copy of the inspection request dated 05.06.2010 is Ex.
PW1/5, Page No. 8 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020
(vi) Outward challan form is Ex. PW1/6,
(vii) Copy of the legal notice dated 01.07.2010 is Ex. PW1/7,
(viii) Copy of the postal receipts dated 01.07.2010 is Ex. PW1/8,
(ix) Copy of the UPC reciept dated 01.07.2010 is Ex. PW1/9,
(x) Copy of the police complaints dated 07.02.2011 are Ex.
PW1/10,
(xi) Copies of postal receipts and fax receipts are Ex. PW1/11,
12. Thereafter, the plaintiffs evidence was closed and matter was listed for recording of defendants evidence.
13. In support of its case, Smt. Sadhna Vashisht as DW1 who has deposed on affidavit Ex.DW1/A and Sh. Sasi Kanta Buyan, has been examined as DW2, on affidavit Ex. DW2/X, contents of affidavits are not reproduced for the sake of brevity and will be adverted to at the relevant stage and relied upon documents :
(i) Letter of authority dated 04.06.2019 is Ex. DW2/A,
(ii) Letter of authority dated 30.07.2011 is Ex. DW2/B,
14. No other witness was examined and defence evidence was closed.
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15. I have heard the arguments on behalf of plaintiff and the pleadings as well as evidence and all the annexed and exhibited documents and record.
My issue wise findings are as under : Issue Nos. 1 & 2
16. These issues are over lapping each other and are disposed of by this common order.
17. Plaintiff appeared as PW1 and reiterated the contents of the plaint, and interalia, testified that inspection report were conducted and work of the plaintiff upto 250 sq. mtrs. was found completed and plaintiff in respect of the said work also supplied raw material to the tune of Rs. 2,25,000/ for which PW1 has raised invoices but payment is still pending. PW1 further testified that even after successful completion of work as well as satisfactory inspection of the same, and having raised the bill to the tune of Rs. 4,30,000/, defendants failed to make the payment, therefore, the suit has been filed for recovery of the suit amount.
18. PW1 in crossexamination admitted that he was assigned the work of closure of opening in PTB and Pier of the area around 11 sq. mtrs. @ Rs. 2000/ per sq. mtrs. in construction of new Terminal (T3 at Indira Gandhi Airport along with the terms Page No. 10 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 and conditions of work assigned. He admitted that he gave his acceptance for the assigned work to complete as per the specified norms and standards and he gave assurance regarding the completion of assigned work upto the satisfaction of defendant no.2. PW2 admitted that as per the norms he was only entitled for the payment of completed work which is duly certified and endorsed by Qualityincharge of defendant no. 2 / L&T Limited. PW1 admitted that the valid inspection report is prepared by two persons namely Siteincharge, who measures the work completed, and Qualityincharge, who certified the quality of work completed as per specified norms and standards.
19. PW1 further admitted that after the satisfactory endorsement by the said officers of defendant no. 2 on the inspection request, only then the person who carried out the work assigned to him was eligible for the payment of the said work. PW1 has admitted that he has not received any amount from defendant no. 1 for the work done by him upto 300 mtrs. PW1 admitted that document Ex. PW1/5 contains the remark 'rectification required', which he had duly rectified as per the said document. He admitted that the Qualityincharge and site Incharge of defendant no. 2 have to endorse the completion of work and Qualityincharge and Siteincharge of def. no. 2 have issued the completion certificate to defendant no. 1 and not to him. He has obtained the copy of the same from defendant no. 1.
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20. PW1 admitted that he have not completed the work which was assigned to him and had left in between as he has not received the payment for the work done by him. PW1 admitted that work assigned by defendant no. 1 to him was approximately 250 sq. mtrs, which was, lateron, enhanced to 1100 sq. mtrs. He admitted that he has filed the list of all the raw material except the bill of sealant. PW1 also admitted that there is no signature by the issuing company on the invoice No. AT0275 issued by Ambey Traders i.e. Ex. PW1/2. He admitted that as per the norms, 40% of the raw material was to be paid by the company on the submission of invoice, however the defendant no. 1 had not paid any amount, after purchasing the raw material.
21. On being crossexamined by defendant no. 2, PW1 admitted that there was no agreement of work between him and defendant no. 2 and documents Ex. PW1/1 to Ex. PW1/9 were all executed between him and defendant no. 1 only. He admitted that he has not received any amount for the bills raised by him for work the work he had completed for defendant no. 1.
22. To rebut the case of the plaintiff, defendant no. 1 lead evidence and DW1 has testified that defendant no. 1 got a sub contract of work of 'closure of opening in PTB & PIERS' from defendant no. 2. The defendant no. 1 further assigned the said work of area around 1100 sq. mtrs @ Rs. 2000/ per sq. mtrs. in construction of Terminal3 (T3) at IGI Airport., and at the same Page No. 12 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 time provided the terms and conditions of the work assigned and accordingly the plaintiff gave his assurance regarding the completion of the assigned work up to the satisfaction of defendant no. 2. It is submitted that technically inspection request is prepared by the two separate persons regarding the work completed namely
(i) Siteincharge, who measures the work completed (ii) Quality incharge who certifies the quality of the work completed as per the specified norms. DW2 admitted that after the satisfactory endorsement by both the said officials of defendant no. 2 i.e. Qualityincharge and Siteincharge on the Inspection request, and the person who carries out the assigned work gets eligible for the payment of the same.
23. DW1 testified that the plaintiff failed to complete the work assigned to him upto the satisfaction of the concerned In charge of defendant no. 2 in as much as list of all inspection report filed by the plaintiff is signed by Siteincharge and not by Quality incharge. DW1 further testified that in order to save the reputation of defendant no. 1 company, the left out work of plaintiff was got completed from some other contractors. The plaintiff has supplied raw material of Rs. 1,50,000/ for 40% amount has been paid by defendant no. 1 and DW1 has paid Rs. 50,000/ through cheque and Rs. 26,000/ by cash against the receipt.
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24. In crossexamination DW1 admitted that on being crossexamined she has submitted that she do not remember the area for which the work has been awarded to defendant no. 1, she however, admitted that the contract was worth Rs. 40 lakhs. She admitted that def. no. 1 had assigned the work for about 1200 sq. mtr. to the plaintiff, however, plaintiff had not completed work for even 1520 sq. mtrs. DW1 has admitted that the official of defendant no. 2 who visit the site, had informed in writing to the labour working at the site about any discrepancy in their work. She admitted that on the next visit of def. no. 2 officials, the supervisor of the labour signed the report besides her signatures as well as signatures of defendant no. 2. DW1 admitted that they have not issued any memo in writing regarding unsatisfactory work/job. DW1 admitted that they had placed on record the cash receipt of Rs. 26,000/ as mentioned in para no. 6 of the affidavit Ex. DW1/A.
25. Defendant no. 2 led evidence of DW2 Sh. Sasi Kanta Bhuyan, who testified that she is not concerned whatsoever with the agreement entered into between plaintiff and defendant no. 1. The contract, if any, between plaintiff and defendant no. 1 is against the terms and conditions of the agreement between defendant no. 1 and defendant no. 2. The defendant no. 2 has no concern about any payment to be made by defendant no. 1 to plaintiff. DW2 testified that officer/officials of DW2 has never made inspections on 05.06.2010 as alleged by plaintiff.
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26. It may be noted that during the course of arguments Ld. Counsel for the plaintiff has contended that plaintiff has done the work at the site of defendant no. 1 in terms of sub contract awarded by defendant no. 1 and plaintiff raised the bills which is included in the suit amount, but defendant failed to make payment of any amount.
27. Per contra, Ld. Counsel for defendant no. 1 has contended that plaintiff has completed only 12 sq. mtrs. Of work assigned to him which was checked by the Qualityincharge of defendant no. 2 and as per the inspection report carried out by Qualityincharge of defendant no. 2, the plaintiff was directed to rectify the work done by him as per the terms and conditions of the work assigned by the plaintiff, which plaintiff failed to do so, and intentionally left the work, which was, lateron got completed from another contractor, therefore, plaintiff is not entitled to a single penny.
28. Ld. Counsel for defendant no. 2 has contended that it is alleged by plaintiff that defendant no. 2 has given sub contract of the main contract awarded by defendant no. 2 to defendant no. 1, which was impermissible as per the terms and conditions of the main contract of the defendant no. 1 with defendant no. 2. Therefore, any work done by the plaintiff in violation of the terms and conditions of the main contract, defendant no. 2 is not liable to Page No. 15 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 make any payment. The plaintiff has filed all the photocopy of the documents therefore, on the basis of photocopy, neither the defendant no. 1 and defendant no. 2 can be saddled with any liability.
29. It may be noted PW1 failed to prove any other document except document Ex. PW1/11 in as much as all the other documents being photocopy, therefore, by virtue of ratio of judgment R.V.E. Venkatachala Gounder v. Arulmiu Viswesaraswami & V.P. S. Gondar, passed by Hon'ble Supreme Court in Civil Appeal No. 10585 of 1996 these documents cannot be held to be proved as per law.
30. It may be noted plaintiff has pleaded and tried to prove that he has completed a part of work/contract for approx. 250 sq. mtrs. and he has also supplied raw material for an amount of Rs. 2,50,000/ at the site of defendant no. 1. But to prove this fact that to how much work was completed by plaintiff, plaintiff except his self serving statement as contained in Ex. PW1/A did not lead any evidence, in as much as all the documents placed on record by the plaintiff except Ex. PW1/11 are marked documents, which cannot be taken into consideration for saddling the defendant no. 1 with any liability. Apart from that PW1 had admitted that there is no agreement of work between plaintiff and defendant no. 2 and all the documents numbered as Ex. PW1/1 to Ex. PW1/9 (marked Page No. 16 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 documents) were executed between plaintiff and defendant no. 1. Therefore, as per the deposition of PW1 there was no contract or sub contract between plaintiff and defendant nos. 1 & 2. Therefore, defendant no. 2 cannot be saddled with any liability. Furthermore, it is pleaded case of defendant no. 1 that plaintiff was assigned a work contract for 1100/ sq. mtrs. out of which plaintiff has completed only 12 sq. mtrs. of the work, otherwise, plaintiff has completed the work more than 300 sq. mtr. out of 1100 sq. mtrs. as deposed by PW1 in his testimony.
31. It is categoric deposition of DW1 that work of the plaintiff to be inspected and inspection report was to be prepared by the two persons namely SiteinCharge and Qualityincharge of defendant no. 2, who certified the quality of the work completed as per the specified norms. After the satisfactory endorsement by both the said officials of defendant no. 2, on the inspection request, the person who carries out the assigned work gets eligible for the payment of the same. Therefore, entitlement of the plaintiff to the suit amount is subject to the inspection request/report prepared by defendant no. 2 of the work done by the plaintiff.
32. Plaintiff in his crossexamination has admitted that he had given assurance regarding completion of the assigned work and he was only entitled for the payment of completed work to the full satisfaction of the defendants and therefore, plaintiff is not Page No. 17 of 18 CS No. 1803/2013 Sanjay Tuli v. Shrankala & Ors. Date of Decision : 10.02.2020 entitled to any amount for the work done by him at the site of the defendants. So far as the entitled of the plaintiff to 40% of the raw material supplied by plaintiff to defendant no. 1 is concerned, DW1 has testified that he has returned the amount of Rs. 26,000/ by cash in terms of Ex. DW1/A and Rs. 50,000/ by way of cheque, even if, it is presumed for the sake of arguments, though not admitted that cheque amount is not paid by defendant no. 1 to plaintiff, the entitlement of plaintiff to the amount, if any, was subject to his completion of the work assigned to plaintiff by defendants and as stated above, plaintiff did not leave any evidence to prove completion of work, otherwise, admitted that he left the work on the spot on amount of non payment of bills by defendant no. 1. and therefore, plaintiff is also not entitled for any amount.
Relief:
33. In view of the findings on issues aforesaid, I am of the considered opinion that plaintiff has not been able to establish its case against defendants. The suit filed by the plaitniff is accordingly dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on DR VIJAY Digitally signed by DR VIJAY 10th Day of February, 2020.
KUMAR KUMAR DAHIYA
Date: 2020.03.18
DAHIYA 09:45:26 +0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
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