Bangalore District Court
Stated That vs In The Month Of September 2015 And ... on 13 September, 2017
IN THE COURT OF THE IX ADDL. SMALL CAUSES AND ADDL.
MACT., BANGALORE, (SCCH-7)
Dated this the 13th Day of September 2017
PRESENT: SMT. SUJATHA, S. B. COM., LL.B.,
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small Causes,
Member, MACT-7, Bangalore.
S.C.No.1318/2015
Hephzi Elivators International ..... PLAINTIFF
Company Pvt. Ltd.,
"HEPHZI TOWERS", Plot No.32/A,
Doddanekundi, Kiadb Industrial
Area, 1st Phase, Mahadevapura
Post, Behind Graphite India,
Bengaluru 560 048.
Represented by its director and
Authorised Signatory
Mr.R.Kamalesh
(By Sri. Rajaraj, Adv.,)
v/s
Ravi Rajashekara Reddy .... DEFENDANT
S/o. Late. M Seetharama Reddy,
Aged Major,
Sri. GSR Towers, Main Road,
Parvathi Nagar, Bellary- 583 103
(By Sri. Hari Prasad.N., Adv.,)
: 17.11.2015
1. Date of Institution
2. Nature of Suit : Recovery of Money
SCH-7 2 S.C.No.1318/2015
3. Date of Evidence : 11.03.2016
4. Date of Judgment : 13.09.2017
5. Total duration : YEAR/S MONTH/S DAYS
01 09 27
(SUJATHA. S)
IX Addl. Small Causes Judge & XXXIV ACMM,
Court of Small causes,
Member, MACT-7, Bangalore.
The Plaintiff filed present suit for the relief of recovery of
money.
2. It is the case of plaintiff that, their Company engaged in the
business of installation of various types of elevators, escalators as
per the requirements of the customers. During the year 2012, the
Defendant wanted one number of 6 passenger MRL lift with ARD,
basement, ground and four upper floors to be installed at his
premises bearing No.12/A, 146 A-B, Parvathi Nagar Main Road,
Bellari-583103. In this regard, the Defendant placed an order
dated 06.02.2012 with the plaintiff for supply, design, erection,
testing and commissioning of one number of 6 passenger lift with
provision for Basement, Ground and our upper floors. The total
value of the above said contract was initially fixed at
Rupees.11,25,000/- after mutual agreement. Subsequently, the
contract value was revised to Rupees.7,00,000/-. Accordingly, the
Defendant had signed the acceptance of supply and work order of
SCH-7 3 S.C.No.1318/2015
the plaintiff on 30.03.2012. In furtherance of the above
agreement, the Defendant was required to keep the lift shaft
ready for installation of 1st stage of the lift and make payment of
the contract valued as per the terms of the payment of the
contract. After payment of the amount for supply of materials by
the Defendant to the Plaintiff, the Plaintiff is required to supply the
materials for installation of the lift. As can seen from the dates of
payment made by the Defendant, there is delay of almost one
year in making payment towards supply of materials from the date
of entering into contract with the plaintiff. After the second
payment made by the Defendant, the Plaintiff has supplied the lift
materials on 28.03.2013 and subsequently on 25.05.2013 and
31.05.2013 to the site of the Defendant. As the lift shaft was not
kept ready for initial installation by the Defendant, it took some
more time for the Plaintiff for commencing the installation. Finally
after the lift shaft was ready for installation some where in the
month of July-August 2013, the Plaintiff commenced the
installation of the lift and completed the same in the month of
December 2013 and commissioned the lift in the same month and
handed over the lift after commissioning the same to the
Defendant on 12.12.2013. After handing over the lift to the
Defendant, the Plaintiff has raised a final bill and handed over the
statement of account showing the outstanding amount payable by
the Defendant to the Plaintiff to the Defendant on 25.12.2013.
Plaintiff stated that, they provided free maintenance of the lift
installed in the premises of the Defendant subsequent to handing
SCH-7 4 S.C.No.1318/2015
over of the same to the defendant till the month of August 2015
though the plaintiff is duty bound to provide free maintenance of
the lift for a period of one year from the date of handing over the
same to him as provided in the contract. Out of the total contract
value of Rs.7,00,000/-, the Defendant paid an amount of
Rs.6,30,000/- in two installments leaving the outstanding amount
of Rs.70,000/- to be paid by him to the plaintiff immediately after
handing over the lift. The Plaintiff has requested the Defendant
several times orally as well as in writing to make the balance
payment. After the plaintiff stopped its service of lift of the
Defendant in the month of September 2015 and demanded the
Defendant to enter into annual maintenance contract to continue
the service and also demanded the balance payment of
Rs.70,000/- from him. The Defendant got issued a legal notice
dated 30.09.2015 to the plaintiff making several false allegations
against in order to wriggle out of his responsibility of making
payment of the principal amount of Rs.70,000/- to the Plaintiff.
The Plaintiff got issued a reply notice dated 15.10.2015 making its
stand clear and demanding the defendant to make payment of the
balance amount along with applicable interest. The said reply is
duly received by the advocate of the Defendant. However, the
Defendant has not paid the balance amount to the Plaintiff.
Defendant has withheld the payment of the above said
outstanding amount to the Plaintiff without any valid reasons. The
Plaintiff is engaged in the business and borrows amounts from the
Banks and pays interest on the said borrowings to the Banks. The
SCH-7 5 S.C.No.1318/2015
Plaintiff has paid amounts to the suppliers of lift and lift cabin in
the year 2013 itself and as such, the Defendant is liable to pay
interest on the above said outstanding amount. The Defendant is
liable to pay interest from 12.12.2013 till payment of the entire
amount at the rate of 12% p.a. as per condition No.5 of the
contract. Under these circumstances, the plaintiff prayed to
decree the suit.
3. After service of summons Defendant appeared through
counsel and filed written statement.
4. In the written statement the Defendant contended that, he is
an advocate having his address at Ballari as mentioned in the
cause title of this plaint. The Defendant stated that, he has
constructed a complex in the address as shown in the Ballari for
his own use. He wanted one number of 6 passenger MRL lift with
ARD, basement, ground and four upper floors to be installed at
his premises bearing No.12/A, 146 A-B, Parvathi Nagar, Main
road, Ballari- 531 013 and in this regard, placed an order dated
06.02.2012 with the Plaintiff for supply, design, erection, testing
and commissioning of one number of 6 passenger lift with
provision for Basement, Ground and four upper floors. The
defendant admitted that, total value of the above said contract
was initially fixed at Rupees.11,25,000/- after mutual agreement
and subsequently, the contract value was revised to
Rupees.7,00,000/- after further discussions and the same was
SCH-7 6 S.C.No.1318/2015
acknowledged by the parties to the contract through their
correspondence and the same was accepted and acted upon and
accordingly, he had signed the acceptance of supply and work
order of the Plaintiff on 30.03.2012.
5. The Defendant denied that, he was required to keep the lift
shaft ready for installation 1st stage of the lift and make payment
of the contract value as per the terms of the contract and after
payment of the amount for supply of the materials, the plaintiff is
required to supply the materials for installation. The Defendant
stated that, he has made payment of 1,00,000/- on 31.03.2012 as
advance by Cheque and Rs.5,30,000/- on 13.03.2013 as part
payment through RTGS. There is delay on the part of the plaintiff
to keep the materials ready as per schedule. The defendant
denied the allegations made by the plaintiff. Without prejudice to
the above contention, the defendant stated that, Plaintiff's sales
manager approached him and by believing the assurance given
by him with good faith he has placed order of supply of six
passenger capacity elevator for his own use for a sum of Rupees
7,00,000/-. The Defendants stated that Plaintiff accepted supply
order and entered into agreement with him on 30.03.2012. The
Defendants stated that the Plaintiff undertaken to handover shaft
on 20.04.2012 and delivery of materials on site at 22.06.2012 and
to complete the installation lift by 23.07.2012. The Plaintiff
delivered the materials on 28.03.2013. The Plaintiff deliberately
caused delay in delivering the lift materials. Much delay has been
SCH-7 7 S.C.No.1318/2015
caused by the Plaintiff to complete installation of lift and
Defendant admitted that completion report issued by the Plaintiff
on 12.12.2013. The Defendant stated that the Plaintiff has
supplied inferior quality materials and he has sent customer feed
back dated 12.12.2013 in which he has clearly stated that "worst-
not up to expectation". Further Defendant stated that lift never
work properly for not even one week continuously after handing
over of the lift. There were frequent break downs and repeated
complaints made by the Defendant to the Plaintiff. Due to the act
of Plaintiff the Defendant put to mental agony and harassment as
such he refused to pay balance of Rupees 70,000/- to the Plaintiff
and same is adjusted towards breach of contract and inferior
quality of lift materials supplied by the Plaintiff. Defendant stated
that he is not liable to pay balance amount of Rupees 70,000/-.
The Defendant stated that he got issued Legal Notice dated
30.09.2015 which was served upon Plaintiff, however the Plaintiffs
state wage and untenable reply. The Plaintiff after receipt of
notice dated 30.09.2015 has filed false suit. The Plaintiff has
supplied inferior quality lift materials, there is delay in installation
of lift, there is negligence and deficiency in the service on the part
of Plaintiff. Therefore the Defendant filed C.C.No.314/2015 before
Consumer Disputes Redressal Forum at Bellary against the
Plaintiff. The suit of the Plaintiff is barred by limitation. Under
these circumstances the Defendant prayed to dismiss the suit.
SCH-7 8 S.C.No.1318/2015
6. In order to prove the case of Plaintiff, the Director of Plaintiff
Company got examined as P.W.1 and got marked 19 documents
as per Exs.P1 to P19. On behalf of Defendant, the Defendant
himself got examined as D.W.1 and got marked 14 documents as
per Exs.D1 to D14. During the course of cross examination of
D.W.1 three documents got marked through confrontation as
Exs.P20 to Ex.P22.
7. On the basis of above pleadings, this Court framed following
issues:
1. Whether the plaintiff is entitled for
recovery of Rupees 70,000/- with interest
at the rate of Rupees 12% p.a. from
12.12.2013 till its realization?
2. What Order?
8. Heard the argument and perused the record.
9. My answer to the above points are as under:
Issue No.1 : In the Affirmative
Issue No.2 : As per final order
for the following:
REASONS
10. Issue No. 1 : It is the case of the Plaintiff that, they are
engaged in the business of installation of various types of
SCH-7 9 S.C.No.1318/2015
elevators and escalators. On 06.02.2012 the defendant placed
order for 6 passenger capacity MRL lift with ARD, basement,
ground and four upper floors, to be installed at his premises
bearing No.12/A, 146 A-B, Parvathi Nagar Main Road, Bellari-
583103. The total value of the above said contract was initially
fixed at Rupees.11,25,000/- and subsequently, contract value
was revised to Rupees.7,00,000/-. The Defendant had signed
the acceptance of supply and work order of the plaintiff on
30.03.2012. As per the agreement, the Defendant was required
to keep the lift shaft ready for installation of 1st stage of the lift
and make payment for supply of materials. After payment of
amount for supply of materials by the Defendant, the Plaintiff is
required to supply the materials for installation of the lift. There
was delay of almost one year in making payment towards supply
of materials from the date of entering into contract. After the
second payment made by the Defendant, the Plaintiff supplied
lift materials on 28.03.2013 and subsequently on 25.05.2013 and
31.05.2013 to the site of the Defendant. Further the plaintiff
stated that, as the lift shaft was not kept ready for initial
installation, it took some more time for the Plaintiff for
commencing the installation. After lift shaft was ready for
installation somewhere in the month of July-August 2013, the
Plaintiff commenced the installation of the lift and completed in
the month of December 2013 and handed over the lift after
commissioning the same to the Defendant on 12.12.2013. After
handing over the lift to the Defendant, the Plaintiff has raised a
SCH-7 10 S.C.No.1318/2015
final bill and handed over the statement of account showing the
outstanding amount payable by the Defendant on 25.12.2013.
Plaintiff stated that, they have provided free maintenance of lift
subsequent to handing over of the same to the defendant till the
month of August 2015 though the plaintiff is duty bound to
provide free maintenance of the lift for a period of one year from
the date of handing over. Out of the total contract value of
Rs.7,00,000/-, the Defendant paid an amount of Rs.6,30,000/- in
two installments leaving the outstanding amount of Rs.70,000/-.
Inspite of several request and demand the Defendant not paid
balance amount. In the month of September 2015 the plaintiff
stopped its service of lift and demanded the Defendant to enter
into annual maintenance contract to continue the service and
also demanded him to balance payment of Rs.70,000/-. Then
the Defendant got issued a legal notice dated 30.09.2015
making several false allegations against in order to avoid his
liability of making payment of Rupees 70,000/- to the Plaintiff.
The Plaintiff issued a reply notice dated 15.10.2015 making its
stand clear and demanded the defendant to make payment of the
balance amount along with applicable interest. Inspite of service
of said reply, the defendant not paid the balance amount. In this
case the Defendant admitted that he entered into contract with
Plaintiff for installation of lift to his building and contract value
fixed at Rupees 7,00,000/-. Defendant admitted that he signed
acceptance of supply and work order of Plaintiff on 30.03.2012.
The Defendant also admitted that he paid Rupees 1,00,000/- to
SCH-7 11 S.C.No.1318/2015
the Plaintiff on 31.03.2012 through cheque and paid part
payment of Rupees 5,30,000/- through RTGS on 13.03.2013.
The Defendant also admitted that the complete installation of list
completed in moth of December 2013 and handed over lift after
commissioning on 12.12.2013. However it is the contention of
Defendant that the Plaintiff agreed to complete the work of
installation of lift within 23.07.2012 and much delay has been
caused by the Plaintiff and lift work completed on 12.12.2013,
thereby he was put to mental agony and harassment. Further the
Defendant contended that the Plaintiff has supplied inferior
quality materials. Further the Defendant contended that after
issuance of Legal Notice dated 30.09.2015 to the Plaintiff they
sent wage and untenable reply and thereafter the Plaintiff filed
false suit as counter blast.
11. In support of plaintiff's case P.W.1 filed evidence affidavit
in lieu of chief examination and produced Ex.P1 resolution
dated 9.11.2015, Ex.P2 Confirmation order dated 06.02.2012,
Ex.P3 Pre-Installation report, Ex.P4 and 5 are Letter dated
30.03.2012 with annexure, Ex.P6 Lift completion report dated
12.12.2013, Ex.P7 Statement of account, Ex.P8 Office copy of
Letter dated 28.08.2014, Ex.P9 Postal receipt, Ex.P10 Office
copy of Letter dated 15.09.2015, Ex.P11 Postal receipt, Ex.P12
Office copy of letter dated 28.09.2015, Ex.P13 Postal receipt,
Ex.P14 Postal acknowledgment, Ex.P15 Copy of legal notice
dated 30.09.2015, Ex.P16 Reply dated 15.10.2015, Ex.P17
SCH-7 12 S.C.No.1318/2015
Postal acknowledgement, Exs.P18 and 19 are carbon copy of
installation report dated 29.09.2012 and 25.04.2013 respectively.
12. In the cross examination by the counsel for Defendant,
P.W.1 denied suggestion that, Original agreement was for
Rupees 7,00,000/- however, later Plaintiff has created Ex.P5 letter
and annexure for sum of Rupees 11,25,000/-. It is to be noted
that in the written statement itself the Defendant admitted that
after mutual agreement the contract value was revised to Rupees
7,00,000/-. Further P.W.1 stated that, the primary requirements
i.e., lift shaft and machine room were not ready for installation of
lift. P.W.1 stated that as per Ex.P17 and 18 the site was not ready
for fixing the lift. P.W.1 denied the suggestion that, in Ex.P17 and
18 there is no recital that, shaft is not ready on the spot. Further
P.W1 denied the suggestion of counsel for Defendant that, in
Ex.P19 they have not disclosed about details of completion of lift
work. P.W1 denied the suggestion that, without inspection of spot,
only on the imaginary grounds they issued Ex.P5 letter dated
30.03.2012. P.W.1 denied the suggestion that, from the year 2012
up to the year 2013 the Plaintiff were not ready with materials as
such, delay was caused. P.W.1 denied the suggestion that,
because of inferior materials, delay of 7 months caused in
installation of lift, therefore Plaintiff has given free maintenance for
one more year.
SCH-7 13 S.C.No.1318/2015
13. In this case Defendant got examined himself as D.W.1.
The defendant has produced Ex.D1 Confirmation Forum dated
06.02.2012, Ex.D.2 Lift completion report dated 12.12.2013,
Ex.D3 Tax/Sale Invoice, Ex.D4 Central Excise Invoice dated
28.03.2013, Exs.D5 to 10 are Delivery Challans dated
28.03.2013, Ex.D10(a) Endorsement made on back page of
Ex.D10, Ex.D11 customer feedback form dated 12.12.2013,
Ex.D12 Pre installation report, Ex.D13 Letter dated 28.06.2014
and Ex.D14 Certified copy of complaint.
14. In the cross examination by counsel for plaintiff, D.W1
admitted that, at present he is using lift. DW1 admitted his
signatures in E.xP2 Order confirmation Form dated 06.02.2012,
Ex.P.3 Pre Installation Report and Ex.P.4 Letter dated
30.03.2012 and in Page No.1, 3 to 11 of Ex.P5 Letter dated
30.03.2012 along with Annexure. D.W1 admitted copy of
agreement entered in to between him and Plaintiff and it is
marked as Ex.P20. D.W1 admitted that totally he paid
Rupees.6,30,000/- to the Plaintiff and he also admitted that, on
12.12.2013 lift was handed over to him. D.W1 also admitted that,
as per contract out of 7,00,000/- he has to pay remaining amount
of Rupees 70,000/- to the Plaintiff. D.W1 also admitted that, after
handing over lift, Plaintiff maintained the same for a period of 12
months and there after till September 2015 free of cost. DW.1
admitted copy of general drawing and it is marked at Ex.P.21. In
further cross examination DW.1 stated that he has not informed
SCH-7 14 S.C.No.1318/2015
to the Plaintiff in writing about completion of lift shaft with
electricity. In further cross-examination Dw.1 admitted that after
installation of lift on 12.12.2013 the Plaintiff has informed about
balance amount due by him. Dw.1 admitted copy of E-mail
correspondence with official of Plaintiff and it is marked as
Ex.P.22. DW.1 admitted that case filed by him before Consumer
Redressal Forum is dismissed.
15. In the case on hand the Defendant admitted about
agreement entered into between him and Plaintiff in order to
install lift to his building. Further he also admitted that the work
order accepted on 30.03.2012. Further the Defendant also
admitted that after mutual agreement contract value was fixed at
Rupees 7,00,000/-. The Defendant also admitted that the lift
handed over to him on 12.12.2013. As per the admission of
Defendant in the cross-examination he is using the lift and
Plaintiff has provided free maintenance for a period of one year
after installation of lift. As per the documents produced by the
Plaintiff it is clear that the Defendant has paid Rupees 6,30,000/-
to the Plaintiff out of Rupees 7,00,000/- which was the contract
value for installation of lift. The Defendant also admitted that he
has paid Rupees 6,30,000/- to the Plaintiff. It is to be noted that
Defendant admitted that the case which is filed by him before
Consumer Redressal Forum is dismissed. The Defendant
admitted that out of contract amount of Rupees 7,00,000/- he has
to pay Rupees 70,000/- to the Plaintiff. In this case Plaintiff
SCH-7 15 S.C.No.1318/2015
claimed interest at 12% p.a., on balance amount of Rupees
70,000/-. The transaction between Plaintiff and Defendant is
commercial transaction. The Defendant by withholding mount
due towards the install of lift to his building, caused financial
hardship to the Plaintiff. Under the circumstances the Plaintiff is
entitled interest at 12% p.a., on balance amount of Rupees
70,000/- from 12.12.2013 till the date of realization. Accordingly,
Issue No.1 is answered in the Affirmative.
16. Issue No.2: In view of my findings on Issue No. 1, I
proceed to pass the following:
ORDER
The suit filed by the plaintiff is hereby decreed with cost.
The defendant is liable to pay Rupees 70,000/- with interest at the rate of 12% P.A. from 12.12.2013 till the date of realization.
The defendant is directed to pay decretal amount within two months from the date of order. If the Defendant fails to pay decretal amount, the Plaintiff is at liberty to recover the same, in accordance with law.
SCH-7 16 S.C.No.1318/2015 Draw Decree accordingly.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then, pronounced by me in the open Court on this, the 13th day of September, 2017.) (SUJATHA. S) IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small causes, Member, MACT-7, Bangalore.
ANNEXURE
1. WITNESSES EXAMINED BY THE PLAINTIFF :-
P.W.1 : Sri. R.Kamalesh.
2. DOCUMENTS MARKED BY THE PLAINTIFF :-
Ex.P.1 : Resolution dated 09.11.2015 Ex.P.2 : Order confirmation form dated 06.02.2012 Ex.P.3 : Pre installation report Ex.P.4 : Letter dated 30.03.2012 Ex.P.5 : Letter dated 30.03.2012 along with annexure Ex.P.6 : Lift completion report dated 12.12.2013 Ex.P.7 : Statement of Accounts dated 25.09.2015 Ex.P.8 : Office copy of letter dated 28.06.2014 Ex.P.9 : Postal Receipt Ex.P.10 : Office copy of Letter dated 15.09.2015 Ex.P.11 : Postal Receipt Ex.P.12 : Office copy of Letter dated 28.09.2015 Ex.P.13 : Postal Receipt Ex.P.14 : Postal Acknowledgment Ex.P.15 : Served Legal Notice dated 30.09.2015 Ex.P.16 : Reply dated 15.10.2015 Ex.P.17 : Postal Acknowledgment SCH-7 17 S.C.No.1318/2015 Ex.P.18 : Carbon copy of Pre installation report dated 29.09.2012 Ex.P.19 : Carbon copy of Pre Installation report dated 25.04.2013 Ex.P.20 : Acceptance of supply and work order Ex.P.21 : General Drawing Ex.P.22 : Copy of E-mail
3. WITNESSES EXAMINED BY THE DEFENDANT:-
D.W.1 : G.M. Ravi Rajashekhar Reddy
4. DOCUMENTS MARKED BY THE DEFENDANT :-
Ex.D.1 Order confirmation Form dated 06.02.2012 Ex.D.2 : Lift completion report dated 12.12.2013 Ex.D.3 : Tax/Sale Invoice dated 28.03.2013 Ex.D.4 : Central Excise Invoice dated 28.03.2013 Ex.D.5 : Delivery Challan Dated 28.03.2013 Ex.D.6 : Delivery Challan Dated 28.03.2013 Ex.D.7 : Delivery Challan Dated 28.03.2013 Ex.D.8 : Delivery Challan Dated 28.03.2013 Ex.D.9 : Delivery Challan Dated 28.03.2013 Ex.D.10 : Delivery Challan Dated 28.03.2013 Ex.D.10(a) : Endorsement made on the back page of Ex.D.10 Ex.D.11 : Customer Feed Back Form dated 12.12.2013 Ex.D.12 : Pre-Installation Report Ex.D.13 : Letter dated 28.06.2014 Ex.D.14 : Certified copy of Complaint (SUJATHA.S.), IX Addl. Small Causes Judge & XXXIV ACMM, Court of Small causes, Member, MACT-7, Bangalore.