Delhi District Court
M/S. Sfa & Associates vs M/S. Dalip Dewatering on 7 April, 2022
In the Court of Ms. Gurmohina Kaur: Additional District Judge
(South District) Saket Court Complex, New Delhi.
Civil Suit No. 6852/2016
CNR No. : DLST01-000178-2011
1. M/s. SFA & Associates
R.No. 251-252, Karan Palace,
Near Surya Crown Plaza Hotel,
New Delhi-110025 ......... Plaintiff
Versus
M/s. Dalip Dewatering
E-115, Slum Colony,
Sector-25, Rohini,
Delhi-110085.
Through its Proprietor
Mr. Dalip Kumar Vishkarma ........ Defendant.
Suit presented on : 28.01.2011
Judgment pronounced on : 07.04.2022
JUDGMENT
1. The facts as epitomized in the present suit for recovery is that the Plaintiff is a New Delhi based well reputed Proprietorship Firm registered as a Special Class -I contractor with a few States Departments and had executed satisfactorily a number of Government as well as Non Government projects for the State as well as at National Level. It is further stated in the plaint that present suit has been filed on behalf of Mr. Mushir Ahmed, Projector Manager, on behalf of Plaintiff Proprietorship Firm, who has been duly authorized by the Proprietor of the Firm Sayed Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 1 of 30 Fahim Ali to institute the present suit for recovery. It is averred that in the Month of July 2009 vide letter dated 17.09.2009, Defendant, who is Proprietor Mr. Dalip Kumar Vishkarma made an offer to the Plaintiff for dewatering arrangement for the work, construction of underground tank at Rohtak. It is further stated that the offer dated 17.07.2009 made by the Defendant was accepted by the Plaintiff and thereafter the work of dewatering arrangement was allotted to the Defendant after proper discussions/negotiations between the parties, vide Plaintiff letter/work order dated 23.07.2009. It is stated that immediately after the allotment work was done by the Plaintiff to the Defendant, under the defined terms and conditions, which was duly accepted by both the parties, the work was started by the Defendant on the said site at Rohtak, on the very same day of the issuance of work order. It is stated that after the allotment of work to the Defendant in the month of July 2009, on the aforesaid site, Plaintiff noticed certain deficiencies in services of the Defendant in violation of terms and conditions of engagement and even the equipment used at the site by the Defendant were not as per the specifications mentioned in the work order/contract dated 23.07.2009 and in consequence thereto for curing these deficiencies, warnings were also issued to the Defendant vide Plaintiff letter dated 28.12.2009 and 19.12.2009 but no response was received on behalf of the Defendant as a result of which the dewatering system totally failed which resulted to huge loss to the Plaintiff. It is further submitted that the dewatering system failed because of the unprofessional and negligent approach of the Defendant which also caused a big blow to the reputation of the Plaintiff in the market resulting not only the financial loss but also loss work wise. It is further stated that the billing process was halted completely because of this factor and there was a delay of more Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 2 of 30 than four months in completion of project and also the procurement of material for construction purpose was delayed and subsequently the rates of material increased very steeply in the market. It is further stated that the Defendants was served upon a detailed Show Cause Notice dated 28.12.2009 by the Plaintiff, wherein an explanation was sought for the said deficiencies in the service and instead of narrating the true picture, the Defendant opted to serve a legal notice dated 13.01.2010 based on a concocted story having no relevance to the explanation sought by the Plaintiff in the Show Cause Notice. It is stated that the legal notice of the Defendant and the averments raised therein was duly replied by the Plaintiff vide communication dated 17.02.2010 wherein complete chain of facts and circumstances was specifically narrated and the Defendants were advised to contact the Plaintiff on any working day to settle dues and to compensate for the losses suffered by them. It is further stated that immediately after receipt of the Plaintiff's reply dated 17.02.2010, the Defendant instead of contacting the Plaintiff for discussions over the subject matter of dispute, on 04.03.2010 on the basis of certain false and baseless allegations filed a suit for recovery and possession of certain dewatering equipments. It is averred that the allegations raised by the Defendant in the aforesaid suit were not only baseless but actually were the repercussions of Plaintiff's letter dated 08.12.2009, 19.12.2009, Show Cause Notice dated 08.12.2009 and Plaintiff's reply to the Legal Notice dated 17.02.2010.
2. Plaintiff has enlisted in the suit the amount of loss suffered in a tabulated column in his plaint, which are reproduced as under:-
(i) Losses before failure of the dewatering system Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 3 of 30 S.No. PARTICULARS AMOUNT
1. Expenses incurred by the Plaintiff on the dewatering system setup by the Defendant for the construction of Underground Tank, from the date of commencement of work, 5,89,099/-
till its failure. Bills annexed.
2. Total amount paid to the Defendant by the 1,32,333/-
Plaintiff. (Bills dated 19.07.2009,14.08.2009, 20.10.2009, 19.11.2009, 14.12.2009 and voucher dated 12.12.2009 are annexed herewith).
(ii) Losses after failure of the dewatering system S.No. PARTICULARS AMOUNT 1 Expenses incurred by the Plaintiff on 11,11,155/-
restructuring of dewatering work, Bills
annexed herewith.
3. It is submitted that the Plaintiff was also entitled for pendente-lite and future interest @ 24% per annum on the aforesaid amount till the time of realization. By way of the present suit, the Plaintiff has prayed for decree of Rs. 18,32,587/- in favour of the Planitiff and against the Defendant along with pendente-lite and future interest @ 24 % per annum along with cost of the suit to be awarded to the Plaintiff.
4. Upon receipt of summons, the Defendant filed a Written Statement, wherein it was stated that the present suit was a gross misuse of process of law and was liable to be dismissed. It was Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 4 of 30 further stated that the Plaintiff had not come to the Court with clean hands and had suppressed material with malafide to harass the Defendant. It was further denied that in the Month of July 2009 vide letter dated 17.07.2009, the Defendant through its Proprietor Mr. Dalip Kumar Vishkarma made an offer to the Plaintiff for dewatering arrangement for the work construction of underground tank at Rohtak. It is stated in the Written Statement that the letter dated 17.07.2009 was only an offer letter with specific quotation on behalf of the Defendant. It is further stated in the Written Statement that Defendants never received any letters dated 08.12.2009 and 19.12.2009 which has been mentioned by the Plaintiff in their Plaint. It is submitted that the Plaintiff had failed to mention the terms of contract between the parties and as per the norms of contract mentioned at Clause 6 of the Work Order, the Plaintiff was to provide the necessary electronic power or supply from diesel generated set and change over switch as required at one power point at the plant site which was necessary for operating the dewatering system without any break and that the Plaintiff had not followed the nominal norms of the construction and to this effect the Defendant had informed about the position of the site from time to time. It is further stated in the Written Statement that at the time of collapse of earthen walls, the Generating (DG) system for dewatering had been switched off due to some technical fault in the generating system which had also been stated by the Plaintiff and while the water level increased, the Defendant immediately intimated the Plaintiff but the Plaintiff instead of rectifying the problem wasted time and the earthen walls collapsed due to sole negligence on behalf of the Plaintiff. It is further stated that the Defendant had also filed a suit for recovery of legitimate dues and equipment of dewatering which was still in possession of the Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 5 of 30 Plaintiff and further denied receiving any legal Show Cause Notice as had been stated in the plaint.
5. The Plaintiff in its Replication to the Written Statement has denied all the grounds as averred by the Defendant in the Written Statement and have prayed for the suit to be decreed. Replication filed on behalf of the Plaintiff to the Written Statement of the Defendant wherein the objections raised by the Defendant have been vehemently denied on behalf of the Plaintiff. It is stated that the Defendant had filed a false and frivolous suit bearing No. 364- 2010 against the Plaintiff to the same dispute and it has been further stated that the Defendant deliberately and intentionally omitted to mention about the letter dated 23.07.2009 of the Plaintiff which was titled as Dewatering Arrangements of Work Construction of Underground Tank at Rohtak and that it was an agreement in response of the letter of Defendant dated 17.07.2009 and the terms of the work was duly accepted by the Defendant.
6. On completion of pleadings, the admission and denial of the documents was conducted on behalf of the parties and vide order dated 15.01.2014 the following issues were framed.
(a) Whether the Plaintiff has no cause of action? OPD
(b) Whether the Defendant has violated the terms and conditions of the work order of de-watering arrangements due to which Plaintiff suffered losses, before and after the failure of the de-watering system? OPP
(c) Whether the Plaintiff is entitled to recovery of Rs. 18,32,587/- (Rupees Eighteen Lakhs Thirty Two Thousand Five Hundred and Eighty Seven Only) with pendentlite and future interest @ 24 % per annum? OPP.
Suit no. 6852/2016
M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 6 of 30
(d) Relief.
7. The Plaintiff has examined the following witnesses in support of its case.
8. PW-1 was Sh. Adil Hasan Zafri, who is the AR of the Plaintiff. He tendered his affidavit of Evidence as Ex.PW-1/A bearing his signature at point A and B and he relied upon the following documents namely i.e. copy of offer letter dated 17.07.2009 as Ex.PW-1/2, copy of Plaintiff's letter/work order dated 23.07.2009 as Ex.PW-1/3, copy of Plaintiff's letter dated 18.12.2009 as Mark A, copy of Plaintiff's letter dated 19.12.2009 as Mark B, copy of letter dated 28.12.2009 as Ex.PW-1/4, copy of Defendant's reply/legal notice dated 13.01.2010 as Ex.PW-1/5, copy of Plaintiff's reply dated 17.02.2010 as Ex.PW-1/6, copy of photoprints of construction site before failure of dewatering system as Ex.PW-1/7(colly), copy of photo-prints of construction site after failure of dewatering system are exhibited as Ex.PW-1/8(colly), compact disc containing pictures of construction site before failure of dewatering system and after failure of dewatering system Ex.PW-1/9, copies of original bills issued by the Defendant is Ex.PW-1/10 (colly), copy of voucher dated 12.12.2009 issued by the Defendant is Ex.PW-1/11, original bills of expenses before failure of dewatering system are Ex.PW- 1/12(colly) and original bills of expenses after failure of dewatering system are Ex.PW-1/13(colly). During the examination in chief of PW-1 the document Ex.PW-1/1 was re-exhibited and marked as Mark C. During cross-examination, he admitted that he was dealing with the purchase of equipments for the site and that he knew the Defendant. He further admitted that the at the time of collapse of Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 7 of 30 the earthen wall he was present and that intimation of failure of generating system was given to him immediately as he was present there. He denied the suggestion that as the generating system failed because of the failure of change over box and added that it had failed for only two minutes and then again it was started on the alternative generating system as there had two Gensets of 62 KVA each. He further denied the suggestion that the generating system did not work for five minutes, it stopped all the motors and it resulted in increasing of water levels which caused the land to collapse. The witness voluntarily stated that further the Defendant had installed four motors though there should have been 10 to 15 motors but were never installed by the Defendant. He added that the project was halted 3 to 4 times due to the incident and Defendant had already worked for 10-12 days before the incident. He further stated that he did not remember whether the Defendant had worked on the site for one and a half month before the incident took place. He further admitted that the bills were being raised by the Defendant from time to time for part payment and also admitted that the machines and tools of the Defendant were lying in their possession on the site itself in the separate room where the staff of the Defendant used to reside. He denied the suggestion that there was an altercation between their staff and the staff of the Defendant and added that the staff of the Defendant left the spot immediately after the incident as they did not have any electrician amongst them. He admitted that he has supervised the work under the Project Manager which was done later on by some other contractor. He admitted that there was no further payment made to the Defendant.
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9. PW-2 was Ram Avtar Garg who was the Authorized Representative of M/s. Aggarwal Traders, who tendered his evidence by way of affidavit as Ex.PW-2/A bearing his signature at point A and B. He relied upon the documents .i.e Bills already exhibited as Ex.PW-1/12 and Ex.PW-1/13 (colly) which bore his signatures at Point A except on Bill No. 3956 dated 11.02.2010 which contained signatures of his Son at point X. During his cross examination by Ld. Counsel for Defendant, he stated that the bills of the company were prepared by him and sometimes by his son Ravi Garg. He added that it was possible that on a particular date the bills were prepared by both of them. He denied the suggestion that he was deposing falsely at the instance of the Plaintiff.
10. PW-3 was Sh. S.K Jindal, who was the Project Manager with the Plaintiff company. He tendered his evidence by way of an affidavit Ex.PW-3/A bearing his signature at point A and relied upon the documents already exhibited during the evidence of PW-1. During his cross-examination by counsel for Defendant on 09.02.2017 he stated that he had joined the Plaintiff company in 2009 as Project Manager and left his job in 2010. He stated that he do not remember that whether the offer was made by Defendant in his presence or not and he did not remember the date, month and year when the work was started on the site. He further stated that he was not aware about the terms and conditions of the work order. He admitted during his cross examination that the affidavit Ex.PW- 3/A was not drafted in his presence and he could not tell how much work PCC (pakka cement concrete) was done when dewatering system had failed. He added that he had no knowledge about the letter of intimation sent to the Defendant regarding failure of dewatering system and his duty hours were from 08.00 am to 06.00 Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 9 of 30 pm on site. He stated that numbers of employee of Defendant company were 3 to 4 and he did not remember whether the piling system was there or not. He stated that there was no day work done book at the site and he could not say whether any visit register was maintained by the Plaintiff company or not. He further stated that he did not know how much pit was dug by the machine by the Plaintiff and was not sure about the water level at site. He stated that he was present when the dewatering system failed and he did not know about the letter which was issued to the Defendant for requesting him to restart the work at site and settle the matter. He also stated that he did not know when the tank work was completed. He stated that change over box was also installed at the site and he could not say whether any termination letter of contract was given to the Defendant or not. He admitted that he had no knowledge about the failure of the dewatering system.
11. PW-4 was Sh. Ravi Sharma, who was the summoned witness and was the real brother of the Proprietor Sh. Rakesh Sharma of Sharma Electrical. He brought the original book containing carbon copy of bill number 8395 dated 21.01.2010 amounting to Rs. 6289/- original of which was already placed on record and was now Ex.PW-4/1(OSR). During his cross-examination he stated that no authority letter has been issued to him to produce the summoned record and further admitted that Ex.PW-4/1 did not show the place of installation of the goods mentioned in the said bill. He admitted the fact that the contents of Bill Ex.PW-4/1 were not in his handwriting but he denied the suggestion that Bill Ex.PW-4/1 was not issued by Sharma Electrical.
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12. PW-5 was Sh. Mohd. Irfan who was the owner of Chowdhry Electric Company. He brought the book maintained by him in re- spect of selling of disposal wires and cables during the course of running of his business having carbon copies of bills issued from 12.10.2009 to 12.03.2011 from Serial No. 4401 to 4500. Photo- copies of Bill No. 4414 and 4415 were Ex.PW-5/1 and Ex.PW-5/2 (OSR). During his examination in chief on 02.05.2018, he relied upon the Bill No. 4422 dated 18.02.2010, which was Ex.PW- 5/3(OSR).
During his cross-examination by the Ld. Counsel for the Defendnat he stated that he was working with Choudhary Electric Company since 2006 being the Son of Proprietor Sh. Mohd. Aslam and was looking after the day to day affairs of the company. He ad- mitted that all the documentary affairs were being looked after by him including preparation of Bill Book and he had seen Ex.PW-5/1 to Ex.PW-5/3 and admitted that the same did not reflect the name of the Plaintiff Company as the purchaser of the material.
During his cross-examination on 02.05.2018, he stated that no particulars of Plaintiff were filled in the bills Ex.PW-5/1 to Ex.PW-5/3. He further admitted that the contents of Ex.PW-5/1 and Ex.PW-5/2 except the name and other particulars relating to Plaintiff i.e. signatures and stamp of Plaintiff were same as per the contents of bill book brought by him. He further admitted that the signatures at point A on Ex.PW-5/3 were not in his handwriting. He admitted that on Ex.PW-5/1 and Ex.PW-5/2, the name of the Plaintiff at points A and signatures at point B were not in his handwriting. He added that he could not say that in Ex.PW-5/1 and Ex.PW-5/2 whether the name of the Plaintiff at points A were added by the Plaintiff after issuance of bills by us. He admitted the fact that stamp of Plaintiff was not affixed by him on bills Ex.PW-5/1 and Ex.PW-
Suit no. 6852/2016M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 11 of 30 5/3. He further stated that the stamp of Plaintiff was not affixed by him on Ex.PW-5/1 and Ex.PW-5/3. He stated that usually they did not deliver goods at project sites but in rare circumstances they could deliver the goods at the project sites. He further admitted that after seeing Ex.PW-5/1 to Ex.PW-5/3, he could not say if the good were purchased by the Plaintiff or not.
13. PW-6 was Sh. Jagdish Chander, who was the owner of Bha- gat Pump Store. He brought the bill book maintained by him in re- spect of selling of Water Pipes by him during the course of running of his business having Carbon Copies of bills issued from 01.02.2010 to 15.02.2010 from Serial No. 8601 to 8650. The car- bon copies of relevant Bill Nos. 8601 and 8605 were Ex.PW-6/1 and Ex.PW-6/2 (OSR).
During his cross-examination by Proxy counsel for Defendant, he denied the suggestion that Ex.PW-6/1 and Ex.PW- 6/2 were forged bills. He stated that the bills books were not pre- pared by him and were prepared by the concerned sales person. He added that he did not know anything about the bill number 8601 and 8605 and also he did not know either the Plaintiff or the Defen- dant.
14. On completion of Plaintiff evidence, the Defendant examined Sh. Dalip Kumar Vishkarma, the Proprietor of the Defendant Firm as DW-1. He tenders his evidence by way of affidavit as Ex.DW- 1/A and relied upon the following documents:-
(i) Certified copy of work order dated 23.07.2009 as Ex.DW-1/1.
(ii) Certified copy of equipment of dewatering with cost which are fitted at the site as Ex.DW-1/2.
(iii) Certified copy of equipment of dewatering with cost which are Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 12 of 30 in possession of the Plaintiff as Ex.DW-1/3.
(iv) Certified copy of bill bearing no. 048 dated 14.08.2009 as Ex.DW-1/4.
(v) Certified copy of bill bearing no. 049 dated 14.08.2009 as Ex.DW-1/5.
(vi) Certified copy of bill bearing no. 053 dated 20.10.2009 as Ex.DW-1/6.
(vii) Certified copy of bill bearing no. 054 dated 20.10.2009 as Ex.DW-1/7.
(viii) Certified copy of bill bearing no. 058 dated 19.11.2009 as Ex.DW-1/8.
(ix) Certified copy of bill bearing no. 060 dated 14.12.2009 as Ex.DW-1/9.
(x) Certified copy of letter dated 28.12.2009 as Ex.DW-1/10.
(xi) Certified copy of reply of letter dated 28.12.2009 is Ex.DW- 1/11.
(xii) Certified copy of U.P.C post receipt dated 11.01.2010 as Ex.DW-1/12.
(xiii) Certified copy of U.P.C post receipt dated 11.01.2010 as Ex.DW-1/13.
(xiv) Certified copy of U.P.C post receipt dated 11.01.2010 as Ex.DW-1/14.
During his cross-examination by Ld. Counsel for Plaintiff on 20.08.2019, he admitted that before the work order dated 23.07.2009, they had issued an offer letter to the Plaintiff and the said letter was Ex.PW-1/2 and he further admitted that as per Ex.PW-1/2 dated 17.07.2009, he had stated that irrespective of the number of pumps, he would dewater the site. He denied the sug- gestion that after the said work order dated 23.07.2009 Ex.DW-1/1, an agreement dated 23.07.2009 was also executed between the Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 13 of 30 Plaintiff and the Defendant, which was Ex.PW-1/3. The witness admitted his signature on Ex.PW-1/3 dated 23.07.2009. The wit- ness DW-1, further admitted the agreement dated Ex.PW-1/3, which he had denied earlier. He stated they had installed 14 Sub- mersible Pumps and denied the suggestion that the sufficient num- ber of monoblock pumps and submersible pumps were not installed at the site and for this reason the dewatering system at the site failed and caused huge damage to the Plaintiff. He denied the sug- gestion that documents Mark PW-1/A, Mark PW-1/B and Ex.PW-1/4 were served to him by the Plaintiff as a warning in default services. The witness, however, admitted the signatures of his father at point B on Ex.PW-1/4. He added that the signature of his father was taken, but the documents was not supplied to him. He further de- nied the suggestion that his father had received Ex.PW-1/4 and in response to the said letter of 28.12.2009, he had also sent a reply/legal notice to the Plaintiff company. The witness was con- fronted with Ex.PW-1/5, which was the same documents which he had sent to the Plaintiff in response to Ex.PW-1/4 dated 28.12.2009. He admitted that Ex.PW-1/5 was sent in response to Ex.PW-1/4. The witness was again confronted with Ex.PW-1/4, wherein he stated that in letter dated 19.12.2009, Mark PW-1/B was not specifically denied Ex.PW-1/5 whereas he had stated that it was denied in para no. 6, 8 and 11 of the reply which was Ex.PW- 1/5. He further stated that they had received Ex.PW-1/6. He denied the suggestion that inspite of repeated warning of the Plaintiff vide Mark PW-1/A, Mark PW-1/B, Ex.PW-1/4, they had failed to install the required mono-blocks pumps, submersible and other equip- ments as per the agreement because of which the dewatering sys- tem failed at the site. He admitted that even after getting knowl- edge of the alleged incident of force by the Plaintiff with his labour, Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 14 of 30 he had not lodged any police complaint against the plaintiff and their officials. He further admitted that Ex.PW-1/5 was sent to the Plaintiff after raising of water level at the site and admitted they were not working at the site when Ex.PW-1/5 was sent to the Plain- tiff. He further admitted that in Ex. PW-1/5, it was nowhere stated that his labourers were forced/thrown out of the work site. He de- nied the suggestion that the earthen walls collapsed because of the fault of the Defendant and the Plaintiff was no where at fault and further admitted the fact that the equipments mentioned in Ex.DW- 1/2 were the only document which were fitted at the site. During his cross-examination conducted on 21.08.2019, he admitted that pho- tographs Ex.PW-1/7(colly) and Ex.PW-1/8(colly) transpired the manner in which the dewatering work was done. Further the wit- ness DW-1 admitted that digging of the sand as shown in Ex.PW- 1/7(colly) and Ex.PW-1/8(colly) was done by the Plaintiff company. He admitted that their job was to dewater the project land whereas the Plaintiff had to dig the sand. The witness DW-1 further admitted during his cross-examination that after collapse of earthen wall at the project site the water level raised high in a manner as shown in Ex.P1 to Ex.P8 in Ex.PW-1/8(colly). He admitted that he had not placed on record any documents, any photograph, invoice/bill of any equipment as mentioned in Ex.DW-1/2 and Ex.DW-1/3. He de- nied the suggestion that the claim placed by the Plaintiff was legal or that he was liable to pay to the Plaintiff as the Plaintiff has suf- fered loss because of the negligence due to the execution of the dewatering work.
15. The Defendant also examined Sh. Dhani Ram, his father as DW-2, who tendered his examination by way of affidavit as Ex.DW- 2/A bearing the signatures at point A and B. He stated that he was Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 15 of 30 relying upon his aadhar card for the purpose of his identity proof Ex.DW-2/1. During his cross-examination by Ld. Counsel for Plain- tiff, he stated that the affidavit filed by him in the court was neither read by him before signatures nor the contents have been ex- plained to him and he could not say as to the contents of the Ex.DW-2/A. He further stated that he could not say the period when the Defendant had done the work of dewatering at the Plaintiff's project site and could not even say the month, year when this work was done by the Defendant but added that it was done before 9-10 years. He further stated that he could not say whether DW-1 Dalip Kumar was taking attendance of the labour employed at the project site for the completion of the dewatering work at the site of the Plaintiff and he could not file/produce any document in respect of his presence at the project site of the Plaintiff during the dewatering work. He denied that at the time of dewatering the water level in- creased at the project site and added that he had no knowledge that the present case has been filed by the Plaintiff against the De- fendant. He further stated that DW-1 had taken his signature on a blank paper and paid him some amount for this and that affidavit Ex.DW-2/A had been prepared later on. He denied the suggestion that he was deposing at the behest of the Defendant.
16. DW-3 was Mr. Om Prakash Vishwakarma who was the em- ployee of the proprietor of the Defendant. He tendered his evidence by way of affidavit Ex.DW-3/A and placed reliance on the Aadhar card for the purpose of identity proof as Ex.DW-3/1(OSR). During his cross-examination by Ld. Counsel for the Plaintiff, he stated that he knew DW-1 Dalip Kumar as they belonged to the same district Chattarpur, Madhya Pradesh. He stated that he could not file any document to prove that he had worked with Defendant and added Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 16 of 30 that he had worked with the Defendant as a foremen and his work was to maintain labour and fixing of motor at the Project site. He stated that when he working with the Defendant, DW-1 was incharge of the Site. He denied the suggestion that he was a planted witness to cause wrongful loss to the Plaintiff and wrongful gain the Defendant. He further admitted during his cross-examina- tion that their work was to dewater the land at the project site and they dewatered the land with the help of submersible, mono block pumps. He admitted that the site shown in Ex.PW-1/7 (colly) and Ex.PW-1/8(colly) was the project site of the Plaintiff and the Defen- dant had done the work of dewatering and they had installed 13 to 14 submersible and 3 to 4 mono block pumps at the project site to dewater the land. He stated that when the water level increased on the project site these submersible and mono block pumps were in running condition and were working and he had no knowledge whether the Plaintiff had issued any warning letter to the Defendant for irregularity in the Plaintiff work. He stated that after the collapse of the earthen wall, the Plaintiff forced them to leave the site and the Plaintiff had never forcibly taken signature at any document ei- ther from him or DW-1 and added that they had taken the signature from the father of DW-1. He stated that he had no knowledge about any agreement executed between the Plaintiff and defendant and he had installed the submersible pumps after the instructions of the Defendant. He denied the suggestion that the earthen walls had collapsed due to the carelessness of the Defendant and further de- nied the suggestion that Plaintiff had repeatedly issued warnings to the Defendant by issuing letters Mark PW-1/A and Mark PW-1/B and Mark PW-1/4 to the Defendant.
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17. On completion of Defence Evidence, final arguments were addressed by counsels for both the parties.
18. Final arguments heard. Record perused. Considered.
19. My issue wise findings are as under:-
20. Issue No. 120.1 Whether the Plaintiff has no cause of action? OPD 20.2 The onus to prove this issue was on the Defendant.
20.3 From the perusal of the record, it is seen that while the Plaintiff has claimed recovery amount due to failure of dewatering arrangements of work and reconstruction on account of negligence of Defendant. The Defendant has asserted his written statement that the dewatering system had failed and the earthen wall had collapsed on account of negligence on the part of the Plaintiff. During trial, the Defendant examined three witnesses to corroborate their assertions. In fact, the proprietor of the Defendant firm Dalip Kumar Vishkarma during his deposition as DW-1 placed reliance on certified copy of work order dated 23.07.2009, Ex.DW-1/1 and this document has also been relied upon by the Plaintiff as Ex.PW-1/3 to show prima facie that the terms and conditions had been mutually agreed between the parties interse qua dewatering arrangements for work. This document on which both the parties place reliance is the document/work order on the basis of which the Dewatering work arrangement was carried out by the Defendants on behalf of the Plaintiff's at the site. It is the claim of the Defendant Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 18 of 30 that due to negligence on the part of the Plaintiff, the earthern walls collapsed and the fixing equipments for dewatering of the Defendant company were also destroyed. The case of the Plaintiff on the other hand is that the dewatering system failed because of deficiency in service by Defendant and the Plaintiff by way of the present suit has sought recovery of losses incurred by them, firstly on the ground of expenses incurred by Plaintiff on the dewatering system and total the amount paid to Defendant by Plaintiff for the purported work done during the relevant time and secondly, the expenses incurred by the Plaintiff on restructuring of the dewatering system and on completion of dewatering work through third parties/other agencies.
The Defendant has not been able to show during the trial that the present suit filed on behalf of the Plaintiff has been filed without any cause of action and from the plain reading of the suit itself, it is seen that the Plaintiff has sought recovery of amounts spend by him firstly for the work purportedly done under the purported work order dated 23.07.2009 and thereafter for subsequent completion of work by other agencies. No evidence or proof has been produced during trial by Defendant to even prima facie show that the Plaintiff had no cause of action against the Defendant as has been claimed. The Plaintiff has thus been able to show prima facie sufficient cause of action to file the present suit of recovery, therefore, this issue is answered in favour of Plaintiff and against the Defendant.
21. Issue No. 221.1 Whether the Defendant has violated the terms and conditions of the work order of de-watering arrangements due to which the Plaintiff suffered losses, before and after the failure of the de-
Suit no. 6852/2016M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 19 of 30 watering system? OPP 21.2 The onus to prove this issue was on the Plaintiff.
21.3 In the present case, both the parties have claimed in their pleadings that the de-watering arrangement collapsed on account of negligence of the other party. Admittedly, the Defendant was given the job offer on behalf of the Plaintiff of de-watering arrangement at the project site. The most crucial document which defines the relationship of work and the terms and conditions that were mutually agreed between both the parties is the letter dated 23.07.2009. It has been relied upon by the Plaintiff as PW-1/3 and by the Defendant as DW-1/1. This letter is reproduced as under :-
"SFAA/35-A-1/2009/653 23rd July 2009
M/s. Dilip Kumar
Dewatering Contractor,
H. No. E-115, Sector-25,
Rohini,
Delhi-95
Subject: Dewatering Arrangements for Work
"Constructing, under Ground Tank at Rohtak.
Dear Sir,
With reference to your quotation dated 17/07/09 after considering your rates and terms for taking up above noted work at Rohtak and discussions/negotiations after your visiting project site, we hereby allot the cited work to you on the following rates and terms:
1. All at least 15 No. monoblock motor pumps 3 HP to 5 HP capacity with delivery pipes, as necessary, boring pipes, starters, etc. shall be arranged by you to meet the dewatering requirements of the work site in full.
2. Your work shall be considered to commence on your installing and running minimum 08 No. submersible pumps.
3. If the work is delayed on any account, you will be paid at 40% of your quoted rates after running 03 No. motors and keeping only 02 No. operators at site.
4. You will be paid for the cited work at a rate of Rs. 80,000/-
only per month, from the start till completion of work at site. You Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 20 of 30 may have to run 05 No. or 15 No Motor Pumps for this purpose for completing the entire work.
5. You will be given an advance payment of Rs. 20,000/- only on delivery of the requisite working order Motor Pumps, Pipes etc at work site at Rohtak and another Rs. 20,000/- on installing/commissioning of 08 No. bores.
6. We shall provide you necessary electric power or supply from diesel generating set and changeover switch, as required, at one power point at the plant site.
You have committed to undertake the dewatering work immediately and ensure successful achievement of dewatering of site. Please acknowledge receipt and convey your acceptance of above in duplicate copy.
For SFA & Associates Accepted
(Arvinaben Sen) For. Dilip Kumar".
21.4. It is the case of the Plaintiff that the Defendant had to complete the dewatering work at the site on the aforementioned terms and conditions and the necessary support such as electricity, changeover switch, etc., was to be provided by the Plaintiff at the site. The Plaintiff has claimed that despite various letters, Show Cause Notice, Legal Notice, etc the de-watering system failed as a result of deficiency in service of the Defendant causing financial loss to them.
21.5. Per contra, it is the case of the Defendant that the Plaintiff did not follow the norms of constructions and at the time of collapse of earthen walls, the generating system for water had been switched off due to some technical fault in the generating system as stated by the Plaintiff to the Defendant and even after being immediately informed by the Defendant, the Plaintiff wasted time instead of rectifying problem causing the earthen wall to collapsed. Perusal of the letter dated 17.07.2009, which is Ex.PW-1/2 and has also been Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 21 of 30 admitted by the Defendant shows that this letter had been written by the Defendant to the Plaintiff, wherein the Defendant had stated his requirements and had also given the details of equipments and requirements to be met by the Plaintiff. Pursuant to this letter, the Plaintiff had issued the work order dated 23.07.2009 Ex.PW-1/3. During the relevant period when the Defendants were carried out the dewatering arrangement work at the site for the Plaintiff the Plaintiff had written letter Mark PW-1/A and Mark PW-1/B dated 08.12.2009 and 19.12.2009 respectively, stating their dis- satisfaction at the work being done by the Defendant and requesting Defendants to be diligent in their work. The record further reflects that a letter was written on 28.12.2009 to the Defendant by Plaintiff whether both PW-1/Mark A and PW1/Mark B have been referred and it was informed to the Defendants that the dewatering system had totally failed and the company was under
the loss of Rs. 5 lakh and the Defendant were asked to explain their position. The aforesaid letter is Ex.PW-1/4 and has been admitted by the Defendants. In fact, the same also contains the signatures of Mr. Dhani Ram, who is the father of the Proprietor of the Defendant Firm. It is relevant to mention at this stage, that during the cross- examination of DW-1 Mr. Dalip Kumar Vishkarma, the witness admitted that PW-1/5, which is the reply to the legal notice sent on behalf of the Defendant Firm was sent in response to Ex.PW-1/4.
21.6. The Defendant sent a formal reply dated 11.01.2010, Ex.PW-
1/5 to Notice dated 28.12.2009 is Ex.PW-1/4 wherein they stated that due to negligence on part of the Plaintiff, the earthen walls collapsed and the fixing equipments of dewatering work of the Defendant were also destroyed. It had also been stated in the aforesaid letter that the Defendant had only received Rs. 79000/- in installments as a part Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 22 of 30 payment out of total outstanding amount of Rs. 1,98,333/-, till De- cember 2009 as per bills raised by the Defendant. Pursuant to this reply, the Plaintiff issued a legal notice 17.02.2010, Ex.PW-1/6, wherein they denied all the issues raised by Defendant in their reply/legal notice dated 11.01.2010 Ex.PW-1/4. The Plaintiff vide their legal notice dated 17.02.2010, Ex.PW-1/6, further denied any outstanding liability towards the Defendant at their end. It is also rel- evant to mention that during the cross-examination of PW-1, the wit- ness denied suggestion that the generating system had failed be- cause of the failure of change over box as claimed by the Defendant. PW-1 also stated during his cross-examination that the Defendant had installed 4 motors though there should have been 10-15 motors which had to be installed by the Defendant but were never installed. PW-1 though, admitted that the Defendants were raising bills from time to time for the part payment. He further admitted that he had su- pervised the work under the Project Managers which were later done through some Contractors.
21.7. Furthermore, DW-1 Dalip Kumar Vishkarma, who as the Pro- prietor of the Defendant Firm, stated during his cross-examination that they had 14 submersible pumps and denied the suggestion that sufficient number of mono-block pumps and submersible pumps were not installed at the site and for this reason, the dewatering sys- tem at the site failed. With respect to Ex.PW-1/4, DW-1 stated during his cross-examination that the signature of his father was taken but the said document was not supplied to him. He further admitted that Ex.PW-1/5 was sent to Plaintiff after raising of water level at site and further admitted that in Ex.PW-1/5, it has been no where been mentioned that his labourers were forced/thrown out of work site. DW-1 admitted during his cross-examination conducted on Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 23 of 30 21.08.2019, that after collapse of earthen wall at the project site, the water level was raised high in the manner as shown in Ex.P1 to Ex.P8 in PW-1/8 (colly). He admitted that he had not placed on record any photograph or invoice/bill of any equipment as mentioned in Ex.DW-1/2 and Ex.DW-1/3.
21.8. It is relevant to menion that the Defendant had admitted during trial Mark PW-1/A and Mark PW-1/B. Ex.PW-1/4 bears the signature of the Father of the Proprietor of the Defendant and pursuant to this letter the Defendant sent a reply dated 11.01.2010 Ex.PW-1/5. Though, the Defendants have all time stated that the earthen wall collapsed due to the negligence of the Plaintiff, no proof has been brought forth by the Defendants during trial to corroborate their claim. The Plaintiff on the other hand, had shown warning letters, show cause notice issued by them to the extent of even informing the De- fendants of their short comings as well as intimating them that the dewatering system had totally failed without any delay during the rel- evant period. Furthermore, perusal of Ex. PW1/10 show that the bills raised by the Defendant were raised by Defendant @ 40% which is as per the terms agreed between the parties in Ex. PW1/3. Accord- ingly, an inference can also be drawn that there was a delay in the work that could be attributed to the Defendant. Therefore, in view of the aforesaid facts and discussions, the Plaintiff has been able to show that the Plaintiff suffered loss before and after the failure of de- watering system on account of negligence of the department. This is- sue is decided in the favour of Plaintiff and against the Defendant.
22. Issue no.3 22.1 Whether the plaintiff is entitled to recovery of Rs. 18,32,587 Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 24 of 30 (Rupees Eighteen Lakhs Thirty Two Thousand Five Hundred and Eighty Seven Only) with pendent-lite and future interest@24% per anum? OPP 22.2 The onus to prove this issue was on the Plaintiff.
22.3 In order, to prove his claim, the Plaintiff has averred that owing to failure of de- watering system, the Plaintiff suffered losses before the failure of de-watering system and also after the failure of de-wa- tering system on restructuring of work. With respect to the first claim of the expenses incurred by the Plaintiff on the de-watering system set up by the Defendant for the construction of under-water tank, from the date of commencement of the work till its failure, the Plaintiff is claiming Rs.5,89,099/-. To corroborate these claims, the Plaintiff has placed on record the copy of printouts of construction site before the failure of de-watering system, Ex.PW1/7 (colly), copy of printouts of the construction site after the failure of de-watering system, copies of original bills issued by the Defendant Ex. PW1/10 (colly), Ex. PW1/11 is the copy of voucher dated 12.02.2009 issued by Defen- dant and Ex. PW1/12 is the original bills of expenses incurred prior to failure of de-watering system. The Defendant has admitted Ex. PW1/10 (colly) and the voucher Ex. PW1/1 but has denied the bills details alongwith Ex. PW1/12 (colly). It is pertinent to mention that Ex. PW1/12 (colly) are the original bills placed on record by the Plain- tiff pertaining to the period 2009-2010 when admittedly the Defendant was carrying on work at the site on behalf of the Plaintiff. The total amount of Ex. PW1/12 (colly) is Rs.6,87,425/-. It is further relevant to mention that though these documents have been denied by the De- fendant, no questions have been put to the plaintiff witnesses on the aforesaid bills at the time of cross-examination or at any time during Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 25 of 30 trial. Therefore, bills placed on record as Ex.PW1/12 (colly) are deemed to have been proved during trial.
22.4. At this juncture, it would be also relevant to mention there are bills placed on record by Plaintiff as Ex.PW-1/10(colly). These bills have also been duly admitted by the Defendant at the stage of ad- mission and denial of documents by parties during trial. Perusal of the same reflect that bill No. 48 and 49 dated 14.08.2009 and 19.07.2009, which are a part of Ex. PW1/10 (colly) respectively have been raised by Defendant on the Plaintiff in terms of agreement dated 23.07.2009 Ex.PW-1/3. It is further pertinent to mention that on perusal of Bill No. 53 dated 20.10.2009, Bill No. 58, dated 19.11.2009, Bill No. 60, dated 14.12.2009, all reflect that these bills were raised by Defendant at 40% of quoted rates. This was in com- pliance of Clause 6 of the Dewatering Arrangment of Work as agreed between the parties on 23.07.02009, Ex.PW-1/3. Therefore, in my considered opinion, perusal of these documents prima facie reflect that there was delay on the part of the Defendant in completion of work. The Plaintiff has sought recovery of the payments made the Defendant qua Ex.PW1/10 (colly). The Defendant has merely denied in its written statement that no amount was outstanding qua them and has stated that the Defendant was not liable for the failure of de- watering work. However, it is not the case of the Defendant that they had not received the amount as was raised qua Ex. PW1/10 (colly). The proprietor of the Defendant, however, during his cross-examina- tion as DW1 has stated that the Defendant received only Rs.79,000/- in installment as part payment of the total amount of Rs.1,98,333/- till December, 2009 and Rs.1,19,333/- was still outstanding towards the Plaintiff. The Defendant placed on record bills Ex. DW1/4 to Ex. DW1/9 in this regard. In this context, it requires mentioning that Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 26 of 30 Ex.DW1/4 to Ex. DW1/9 are the same bills as placed on record by the Plaintiff vide Ex. PW1/10 (colly). The total amount of Ex. PW1/10 (colly) is Rs.1,32,333/-. Further, during the cross-examination of DW1, no question was put to the Defendant / DW1 by the Counsel for the Plaintiff that the Plaintiff had made the payment of entire amount and not only Rs.79,000/- as asserted by the Defendant. There is not even a suggestion to this effect which could corroborate the claim of the Plaintiff that the entire amount of Rs.1,32,333/- has been paid. Therefore, the Plaintiff would be entitled to only a recovery of Rs.79,000/- towards the amount paid for the work done by the De- fendant.
22.5 With respect to the second head of dues outstanding liability sought to be recovered by the Plaintiff i.e. the amount spent by the Plaintiff in getting the de-watering arrangement work done alongwith restructuring work by third party agencies, the Plaintiff has placed on record bills Ex. PW1/13 (colly). These bills pertain to the period after the failure of the de-watering arrangement wherein third parties/ agencies were used for supply of material and for completion and reconstruction of work. These bills have been denied by the Defen- dant. To prove these bills further, the Plaintiff has examined some of the third parties from whom the items required by the Plaintiff for restructuring work, were arranged namely PW-2 Ram Avtar Garg, Authorized Representative of Aggarwal Traders, who proved bills pertaining to this firm in Ex.PW-1/12 (colly) and Ex.PW-1/13 (colly). PW4 Ravi Sharma, who was the real brother of proprietor of Sharma Electricals as he brought the original bill book pertaining to bill no. 4395, which was exhibited as Ex. PW4/1. During his cross- examination, the witness stated that PW1 did not show the place of installation of goods. Perusal of these documents reflect that the bill Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 27 of 30 copy have been placed on record by the Plaintiff from which it can be inferred that the same have been duly issued to the Plaintiff. Further, the name of the Plaintiff finds due mentioning in the name of the pur- chaser. The Plaintiff further examined PW5 who was Sh. Mohd. Irfan, the owner of Chaudhary Electric Company. He brought the original bill book with respect to bill no. 4414 and 4415 as Ex.PW5/1 and Ex. PW5/2 and bill no. 4422 as Ex. PW5/3. During cross-examination, he admitted that these bills did not contain the name of the Plaintiff com- pany as purchasers and further stated that he could not say if in Ex. PW5/1 and PW5/2, the name of the Plaintiff was added after the is- suance of bills. It is seen from the perusal of the aforesaid bills that the name of the plaintiff has been inserted in blue ink whereas the rest of the details have been filled up in black ink. PW6 was Sh. Jagdish Chandra, owner of Bhagat Pump Store who brought the orig- inal bill book for bill no. 8601 and 8605 which were exhibited as Ex. PW6/1 and Ex. PW6/2. He denied the suggestion that these were forged bills. It is relevant to mention that these bills are part of Ex. PW1/13 (colly). The bills Ex. PW1/13 (colly) have been proved during the cross-examination of PW1. However, since doubt has been cre- ated with respect to bills Ex. PW5/1 to Ex. PW5/3, the same are not considered as part of the total outstanding amount. The remaining bills annexed in Ex.PW-1/13(colly) either contain the name of the Plaintiff or its seal. The total outstanding of Ex. PW1/13 excluding Ex. PW5/1 to Ex. PW5/3 is Rs. 10,98,535.
22.6. Furthermore, on perusal of the record, it has been stated by DW1 in his examination that certain equipments of dewatering were installed/ fitted at the site of the Plaintiff and cost of which was shown in Ex. DW1/2 which is Rs.1,31,125/-. Further, it has been accepted by PW1 in his cross-examination that "it is correct that the machines Suit no. 6852/2016 M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 28 of 30 and tools of defendant were lying in our possession on the site itself in a separate room where the staff of defendant used to reside." Pe- rusal of the record further reflects that Ex. DW1/2 has not been dis- puted during the cross examination of DW1 by the Plaintiff. Accord- ingly, the Defendant has been able to show that equipment worth Rs. 1,31,125/- of the Defendant was lying in possession of the Plain- tiff after the Defendant left the site on failure of the de-watering ar- rangement system. The amount of Rs. 1,31,125/- is liable to be de- ducted from the total outstanding amount due to the Plaintiff.
22.7 In view of the aforesaid facts, the plaintiff is therefore, liable to recover Rs. 17,14,791/- from the defendants.
23. With respect to the rate of interest recoverable, it is pertinent to mention that Ex. PW1/3 which is the document defining the relation- ship between the parties, does not mention any rate of interest payable in case of default of any party. Therefore, as far as the rate of interest is concerned, the documents placed on record including work order Ex. PW1/3 reflect that there was no penal interest de- cided between the parties interse each other. Therefore, this court deems it appropriate that interest at the rate of 6% per annum sub- serve the end if justice. The Plaintiff is accordingly awarded interest from 28.01.2011, i.e., the date of filing of suit till its realization. No or- der as to cost.
Relief
24. From the discussions, as adumbrated hereinabove, I hereby pass the following:-
Suit no. 6852/2016M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 29 of 30
(a) A decree of Rs. 17,33,855/- is passed in favour of the Plaintiff and against the Defendant along with simple interest @ 6% per an- num from the date of filing of suit till realization.
(b) No order to the cost.
Decreesheet be prepared accordingly.
File be consigned to Record Room after due
compliance.
Pronounced in open Court
on 07.04.2022 (Gurmohina Kaur)
Additional District Judge-03,
South/Saket/New Delhi
Suit no. 6852/2016
M/s. SFA & Associates Vs M/s. Dalip Dewatering Page no. 30 of 30