Delhi District Court
Indian Institute Of Finance vs Shri Rajiv Narain on 20 May, 2013
1
IN THE COURT OF SH.S.K.SARVARIA, DISTRICT & SESSIONS JUDGE (NW)
DISTRICT COURTS ROHINI, DELHI
C.S No. 453/2010 AND COUNTER CLAIM No. 453A/2010
Indian Institute of Finance
Regd. Office : B-3/83
Ashok Vihar, Phase-II
Delhi - 110052.
Campus Address: 45 A
Knowledge Park-III, Greater Noida,
Gautam Budh Nagar, UP
Through Shri Deepak Bansal
Administrative Officer .... Plaintiff
VERSUS
Shri Rajiv Narain
Rajiv Narain Design
Prakrit Farm, Behind Wireless Station,
Andheria More, Mehrauli
New Delhi - 110030. .... Defendant/Counter Claimant
Date of institution: 22.09.2010
Date when arguments were heard/filed: 05.04.2013 & 13.05.2013
Date of Judgment : 20.05.2013
Suit for Recovery of Rs.10,00,000/- alongwith
interest @ 12% p.a. Pendentelite from defendant
AND
Counter claim of Rs.3,05,046/- alongwith
interest @ 18% p.a. Upto the date of payment.
:JUDGMENT:
1. This suit for recovery of Rs.10 lacs alongwith interest @ 12% per annum pendentelite is filed by the plaintiff against the defendant.
Plaintiff's Case :
2. The case of the plaintiff in brief is that plaintiff is an institute Indian Institute Vs Rajiv Narain 2 having a great reputation and provide excellent education for the students of Finance Management through the finest faculty available in the country and is considered to be one of the elite institute in this regard. The same is being run by a Trust namely Jayati Foundation, which is governed by its Chairman, Prof. J.D. Aggarwal, who has authorized Sh. Deepak Bansal, Administrative Officer, by authority letter dated 31.8.2010 to file, sign and verify the present suit.
3. It is further the case of the plaintiff that plaintiff has been allotted a plot by the Greater Noida Authority measuring 26000 sq. mtr. Approximately bearing No. 45-A, Knowledge Park-III, Greater Noida, UP. The Management of the plaintiff continued to search for the designing of its architect and building construction. It is further the case of the plaintiff that defendant had approached the plaintiff at their head office/registered office and discussed the entire matters and assured of providing the services to the satisfaction and as per the desire of the plaintiff in designing the building, campus and also providing the architecture and other professional assistance telling himself to be an architect-cum-designer of great reputation and also gave the reference of various infrastructure, building having been designed and constructed under his guidance to his architecture skill.
4. It is further the case of the plaintiff that defendant held a meeting with the Chairman and Administrative Officer on 07.4.2009 and gave them the great ideas of designing and promised to give the design of the administrative building as per the requirement and desire of the plaintiff providing all facilities before 01.07.2009. The defendant made such impression that the plaintiff was flattered with his presentation and took a cheque of Rs.1 lakh bearing no. 622072 dated 07.4.2009 as an advance towards designing of campus. The plaintiff provided all the information in prints, preliminary designs, building plans, pencil sketches and detailed specifications to the defendant on the same date alongwith the concept of the building to be designed, which was Indian Institute Vs Rajiv Narain 3 explained in detail and informed. The defendant was satisfied with all the information and details given and gave his acceptance and willingness to do the job.
5. It is the grievance of the plaintiff that thereafter, defendant started avoiding to contact the plaintiff and did not give any information about the progress in the matter. The officers of the plaintiff used to visit his office on various dates but the meetings were being avoided on one pretext or the other. It is stated that needful job was not being done. Even the date specified i.e. 01.07.2009, has passed on and no design was made available. The plaintiff kept on writing letters, e-mails and even telephonic information and when the defendant felt pressure on him and did not find any escape route, sent flimsy designs which in no way have resembled with the intended designs or the specifications.
6. It is further the grievance of the plaintiff that plaintiff kept on persuading the defendant to perform the job and ultimately after the expiry of eight months, the plaintiff was informed that the defendant was not able to carry out the work. The delay in accomplishing the job and ultimately refusal after the expiry of eight months had put the plaintiff in immense loss and delay in construction of campus building. It is further stated that in the process, the plaintiff was required to pay a rent for the premises already occupied for the purpose of running the institute on a monthly rent of Rs. 1,51,000/- and the same is being paid due to negligent act on the part of the defendant.
7. It is further the case of the plaintiff that despite the work having not been done by the defendant, the plaintiff demanded the refund of advance of Rs. 1 lakh paid to him, but the defendant instead of refunding the amount had threatened the plaintiff of dire consequences. It is stated that the expenditure were being made on the other premises and building for a period Indian Institute Vs Rajiv Narain 4 of more than eight months as no work could be done due to non performance, negligence on the part of the defendant, the said expenditure is of Rs.12,08,000/-. The plaintiff has also suffered other losses and damages in nature of its reputation, however, it is claiming only Rs.10 lacs from the defendant.
8. A legal notice dated 08th March, 2010 was sent to the defendant which was replied vide reply dated 30th March, 2010 by the defendant giving totally frivolous and flimsy grounds. Hence, the present suit is filed by the plaintiff against the defendant praying to pass a decree for a sum of Rs. 10,00,000/- including Rs.1,00,000/- taken in advance from the plaintiff alongwith interest @ 12% per annum with costs of the suit.
Defendant's Case / counter-claim :-
9. The defendant has contested the suit and filed written statement alongwith counter-claim taking preliminary objections with regard to non maintainability and want of cause of action. Before giving para wise reply of plaint, the defendant has pleaded additional facts which are dealt with in brief here.
10. It is contended on behalf of the defendant that sometime in the year 2004, the defendant for the first time came in association with the plaintiff when the defendant, being an award winning architectural designs, responded to the plaintiff's press advertisement with respect to the building proposed to be constructed at Plot No. 45-A, Knowledge Park-3, Greater Noida, UP (in short 'building'). In pursuit of the same, the defendant entered into negotiations with Professor J.D. Agarwal, Chairman of the plaintiff and held meeting at the office of the plaintiff. The defendant made a detailed design presentation illustrating its thoughts, ideas and design for the Building, which were highly appreciated by Chairman of the plaintiff.
Indian Institute Vs Rajiv Narain 5
11. It is the case of the defendant/counter-claimant that after the preliminary negotiation meeting, the defendant was lead to believe that he would be selected as a architect for the Building and in anticipation thereof, the defendant proceeded to undertake significant preparatory work including refinement of the design based on inputs furnished by the plaintiff, preparation of comprehensive tree plantation scheme, drawing up of a detailed design brief, area statement, estimated cost analysis and proposed time schedule for construction of the Building. Thereafter, the defendant on July 12, 2004 forwarded the details of the price quotations received from multiple vendors to the plaintiff in respect of the above-mentioned activities alongwith draft agreement for the appointment of the defendant as the principal architect for the Building.
12. It is further the case of the defendant/counter-claimant that subsequently a meeting was held with the plaintiff in the first week of April, 2009. The plaintiff informed the defendant that although the plaintiff had appointed another architect for the Building, they were not satisfied with the progress made by the architect. During the meeting, the plaintiff once again commended the extensive work done by the defendant towards the designs of the Building and proposed that the defendant shall forthwith take the responsibility for the construction management of the Building, since the designs of the other architects were already submitted to the authorities at Noida. The plaintiff issued a letter of appointment dated 07.04.2009 appointing the defendant as the 'Principal Design Consultant' for the Building.
13. It is further submitted that in compliance with the Fee Payment Schedule provided under Clause 5 of the letter of appointment, the plaintiff paid the retainer fee of Rs.1.00 lakh to the defendant vide cheque no. 622702 dated 07.04.2009 drawn on SBI. The defendant immediately commenced work in terms of scope of work prescribed in the letter of appointment and Indian Institute Vs Rajiv Narain 6 duly finalized the detailed building program and presented the preliminary sketch design proposal/master plan, including the drawing and area statement reflecting the milestone. The plaintiff formally accepted the final complete programme on 22.04.2009 and defendant duly invoiced the amount of Rs. 2,64,046/- (10% of 32,40,000 + service tax @ 12.36% - Rs. 1,00,000/-) in terms of Clause 5.12 of the LOA, copy of which was handed over to the plaintiff.
14. The defendant had alleged that he has short listed prospective contractors and forwarded their credentials to the plaintiff for approval. A detailed presentation in this regard was made by defendant on April 29-30, 2009 to the plaintiff. The defendant sent many reminders to the plaintiff to pay the bill dated 22.04.2009 but in vain. Therefore, defendant was surprised to receive a telephonic call around the end of May 2009 from Professor J.D. Aggarwal questioning the defendant's devotion to the project. The defendant informed that despite the pending bill amounting to Rs. 2,64,046/- dated 22.04.2009, the project Architect and Design team of the defendant were pursuing the project in consultation/discussion with professor Aman Aggarwal, the Vice Chairman of the plaintiff.
15. Since 22.04.2009 till repudiation of the LOA by the plaintiff in end of May 2009, time spent by defendant and his employees towards Miles Stones under Clause 5.13 and 5.2 of the LOA amounted to a total fee of Rs. 1,41,000/- of the defendant but despite information given the plaintiff failed and neglected to render payment of the same. The defendant was surprised to receive a letter dated 23.07.2009 from plaintiff calling upon the defendant to refund the sum of Rs 5,000/- paid by plaintiff towards Soil Testing Agency and refund of Rs. 1 lakh that has been paid to defendant on the appointment under LOA. The defendant vide letters dated 23.08.2009 and 28.08.2009 clarified the position in detail to the plaintiff. Despite that defendant received another letter dated 10.10.2009 from the plaintiff reiterating the demands for Indian Institute Vs Rajiv Narain 7 refund of Rs. 5,000/- as well as Rs. 1 lakh. The defendant vide reply dated 11.11.2009 brought the attention of plaintiff to his letter dated 28.08.2009 but the plaintiff ignoring the said reply dated 11.11.2009 of the defendant again issued a letter dated 13.11.2009 reiterating the demands for Rs. 5,000/- and Rs. 1 lakh. The defendant in good faith with a view to resolve the matter, persued the refund of Rs. 5,000/- with M/s Cengrs Geotechnica Private Ltd and forwarded the same to the plaintiff vide his letter dated 08.12.2009. The plaintiff issued a legal cum demand notice dated 08.03.2010 calling upon defendant to refund Rs 1 lakh and pay damages amounting to Rs. 10 lakhs. The defendant through his counsel sent legal notice dated 30.03.2010 and replied the legal notice dated 08.03.2010 of the plaintiff. The defendant called upon the plaintiff to pay a sum of Rs. 3,05,046/- after adjusting Rs. 1 lakh already paid by plaintiff as advance.
Written Statement on merit
16. The defendant has not disputed on merits that plaintiff is an institute providing education for the students of Finest Management and is being run by a Trust namely Jayati Foundation which is governed by Chairman Professor J.D. Aggarwal and Sh. Deepak Bansal Administrative Officer is authorized by him to file, sign and verify the present suit and plaint and file affidavit. The defendant has also not disputed that plaintiff has been allotted a plot by Greater Noida authority measuring 26000 sq. mts. approximately bearing no. 45-A Knowledge Park-III, Greater Noida, U.P.
17. The defendant has alleged that it has approached plaintiff in relation to designing of the building way back in 2004 but due to indecisive nature of the plaintiff, no appointment was made by plaintiff for four years thereafter. It is only after repeated requests by plaintiff that defendant agreed to meet the plaintiff at their office in the first week of April 2009. In the meeting, plaintiff wished to appoint defendants as contract managers instead Indian Institute Vs Rajiv Narain 8 of Architect. When the defendant clarified that they were not construction managers and would not take over the work done by some other Architect, the plaintiff proposed to appoint defendant as the Principal Design Consultant for the building.
18. The defendant had denied that it was difficult for the plaintiff to contact defendant and has alleged that on 22.04.2009, detailed presentation was made to the plaintiff that delivered the milestone under Clause 5.12 which was approved by the plaintiff and defendant also raised a bill dated 22.04.2009 for the sum of Rs. 2,64,046/- in terms of LOA. The defendant denied that needful was not being done by defendant.
19. The defendant denied that plaintiff kept on persuading the defendant to perform the job and ultimately after expiry of 8 months, the plaintiff was informed that defendant was not able to carry out the work as alleged or at all. According to defendant, the plaintiff ceased all communications with defendant and also neglected to pay the amount due to the defendant for the work done by the defendant under the LOA in end of May 2009. The defendant submitted that he has always expressed his willingness and readiness to perform his part of obligations under the LOA. The defendant alleged that he was not aware of the fact that plaintiff was required to pay rent for the premises at 4th floor, MSX, Tower-I, Alfa Commercial Belt, Greater Noida, U.P already occupied for the purpose of running the institute on a monthly rent of Rs. 1,51,000/- and neither was the same ever conveyed to the defendant. The defendant denied that the said rent is being paid by plaintiff due to negligent act on the part of defendant. Even the legal notice of the plaintiff dated 08.03.2010 also failed to mention anything regarding the same.
20. Defendant denied that work was not done by defendant and plaintiff demanded refund of Rs. 1 lakh to settle the matter. The defendant Indian Institute Vs Rajiv Narain 9 denied that the plaintiff has suffered the loss of Rs. 1 lakh or any other loss. He denied that the plaintiff has suffered loss due to expenditure having been made to other premises and building for a period of more than 8 months or it was due to negligence of defendant. The defendant denied that the plaintiff has valid and subsisting claim of Rs. 10 lakhs from defendant. The defendant admitted that he has received legal notice dated 08.03.2010 but denied that reply of defendant dated 30.03.2010 was wrong and with malafide intention.
Counter Claim
21. The defendant has made counter claim in support of and in addition to the pleas made by defendant in the written statement disputing claim of the plaintiff made in the plaint. The defendant/counter claimant has alleged that he is an award winning Architectural heading an architectural design firm by the name of Rajiv Narain Design which was established by defendant in 2004. The defendant/counter claimant has alleged that vide LOA dated 07.04.2009, the defendant was appointed the Principal Design Consultant and the fee which was to be paid by plaintiff to defendant is 3% of gross project cost. As per fee disbursal schedule provided in Clause 5 on appointment, the plaintiff was to pay a fee of Rs. 1 lakh and on finalization of detailed building programme in consultation with IIF and presentation of preliminary sketch design proposal/master plan, a sum of Rs. 2,24,000/- being 10% of the total estimate of design fee less payments made, would be disbursed to the defendants.
22. In compliance of the terms of LOA, defendant made design presentation on 22.04.2009 that corresponds to milestone stipulated in Clause 5.12 of the LOA. Professor J.D. Aggarwal on behalf of plaintiff confirmed the designs and arrear statements and asked the defendant to proceed with the detailed designs, drawings for the building. As such the bill of Rs. 2,64,046/- (10% of 32,40,000 + service tax @ 12.36% - Rs. 1,00,000/-) Indian Institute Vs Rajiv Narain 10 was raised by defendant dated 22.04.2009, copy of which was handed over to the plaintiff.
23. The said work was done to achieve milestone contemplated under Clause 5.2 of the LOA. A detailed presentation in this regard was made to the defendant on April 29-30, 2009 to the plaintiff. Therefore, defendant was surprised to receive the telephonic call around the end of May 2009, from Professor J.D. Aggarwal questioning defendant's devotion to the project. In response, defendant informed him that despite no payment made by the plaintiff against the pending bill dated 22.04.2009 for a sum of Rs. 2,64,046/-, the project Architect and Design team of defendant were pursuing the project work in full earnest and in discussion/consultation with Professor Aman Aggarwal the Vice Chairman of the plaintiff. The defendant relied upon the additional facts stated above and pleaded in the written statement cum counter claim and has prayed for decree in the sum of Rs. 3,05,046/- against the plaintiff and in favour of defendant with cost and pendente lite and future interest at the rate of 18% p.a up to date of payment and costs of the suit and counter claim. The defendant has also prayed for dismissal of the suit of plaintiff.
Replication :
24. In the replication plaintiff denied the averments made by defendant in the preliminary objection, additional facts and counter claim of the defendant. The plaintiff alleged that counter claim is not maintainable as it does not fulfil the requirements of Order 8 Rule 6A CPC. The plaintiff has also alleged that there is no cause of action arising in favour of defendant to raise any counter claim. The defendant having not performed any work is not entitled to claim any amount from plaintiff and suit of plaintiff is entitled to be decreed. The plaintiff has denied the averments made in the counter claim and has also disputed the facts stated in the written statement of defendant Indian Institute Vs Rajiv Narain 11 and has reiterated the facts pleaded in the plaint.
Issues :
25. On 25.11.2010 following issues were framed: -
1. Whether the plaintiff is entitled to the decree of Rs.10 lakhs or any other amount as per claim made in the plaint? OPP
2. Whether the defendant is entitled to a sum of Rs.3,05,046/- as claimed in the counter claim from the plaintiff or any other amount as per the pleas made in the counter claim? OPP
3. Relief.
Subsequently inadvertently on 20.12.2010 the following issues were framed again:-
1. To what amount, if any, is the plaintiff entitled from the defendant? OPP.
2. To what amount as to the counter claim, is the defendant is entitled from the plaintiff? OPD.
3. Relief.
Since the issues framed on 25.11.2010 and 20.12.2010 convey the same meaning so to avoid overlapping the issues framed on 25.11.2010 are struck off.
Evidence:
26. For expeditious disposal of the case, the cross-examination of witnesses produced by the parties were got recorded through Local Commissioner by invoking Order 18 Rule 4 CPC. In support of its case, the plaintiff has examined only one witness namely PW-1 Sh. Deepak Bansal who filed his affidavit in evidence. He gave his statement before this court on 11.02.2011 regarding tender of affidavit-in-evidence and documents mentioned in it and exhibited. He was cross-examined before Ld Local Indian Institute Vs Rajiv Narain 12 Commissioner. Thereafter plaintiff's evidence was closed.
27. The defendant has also examined only one witness namely DW-1 Sh. Rajiv Narain, the defendant himself. He filed his affidavit in evidence and gave statement regarding tender of affidavit and was cross- examined before Ld Local Commissioner. Thereafter defendant also closed his evidence.
Arguments and Finding :
28. I have heard Ld. counsel for both the parties and have gone through the written arguments filed by them, the record of the case and the relevant provisions of law. My findings on the issues framed are as under.
ISSUE NOS.1 & 2:-
29. Both these issues are interconnected and require appraisal of same evidence led by the parties, so these issues are being decided together for the sake of convenience.
30. The plaintiff's case in nutshell is that defendant was appointed as the Consultant vide agreement Ex.D1 executed between the parties on 7.4.2009 and was paid Rs.1 lakh by the plaintiff at the time of his appointment. According to plaintiff defendant did not render services as per agreement Ex.D1 which led to delay in the project and the plaintiff had to incur the expenditure of Rs.12,08,000/- as rent @ Rs.1,51,020/- per month for the period w.e.f. July 2009, at fourth floor, MSX Tower 1, Alfa Commercial Belt, Greater Noida. Therefore, plaintiff has claimed a sum of Rs.10 lakhs from the defendant which included the initial payment of Rs.1 lakh paid to the defendant and the rent paid by the plaintiff on account of delay in the project on account of defendant. The claim is excess of Rs.10 lakhs is relinquished Indian Institute Vs Rajiv Narain 13 by the plaintiff.
31. As against the case of the plaintiff, the defendant has alleged that the defendant was ever ready and wiling to complete the part of the contract but the plaintiff suddenly recalled the contract on 23.7.2009 for no fault of the defendant. The defendant has given reply dated 28.7.2009 to the plaintiff. The defendant has also completed detailed working drawings for the administrative block to enable completion of tender package to be issued to prospective builders. A detailed presentation in this regard was made by the defendant on April 29-30 April 2009 to the plaintiff. The plaintiff formally accepted the final complete programme on 22.04.2009 and defendant duly invoiced the amount of Rs. 2,64,046/- (10% of 32,40,000 + service tax @ 12.36% - Rs. 1,00,000/-) in terms of Clause 5.12 of the LOA, copy of which was handed over to the plaintiff. The defendant has requested for the counter claim to be decreed in the sum of Rs. Rs.3,05,046/- with costs and pendente lite and future interest @ 18% per annum.
32. In the light of the above respective position of the parties the evidence of witnesses and documents produced by the parties need to be appreciated in right prescriptive to arrive at correct conclusion.
33. Admittedly, the agreement Ex.D1 dated 07.04.2009 was executed between the parties and a sum of Rs.1 lakh was paid to the defendant by the plaintiff on 07.04.2009 vide banker's cheque. It is also not disputed that a sum of Rs.5000/- was also paid by the plaintiff to Cengre Geotechnica vide cheque dated 27.09.2008 for soil testing and survey on the recommendation of the defendant but the said survey of the plot and soil testing was never done. Therefore, said amount was repaid to the plaintiff and there is no issue between the parties of the said amount of Rs.5000/- now.
Indian Institute Vs Rajiv Narain 14
34. The claim of the plaintiff has two components. One, the refund of Rs.1 lakhs initially paid to the defendant as per agreement Ex.D1. The second component is rent which the plaintiff had to pay on account of delay in project @ 1,52,020/- from July 2009 onwards.
35. As regards the rent allegedly paid by the plaintiff as given in the document Ex.PW1/12 from the period July 2009 to December 2009, it is pertinent to note that although the plaintiff has in the pleadings set up the case that defendant was engaged on 07.04.2009 vide agreement Ex.D1. But the defendant's case is that defendant first came in the association of the plaintiff in the year 2004 with the building proposed to be constructed plot no. 45-A, Knowledge Park-3, Greater Noida, UP. The plaintiff's witness PW1 Sh.Deepak Bansal in the cross examination admitted that they have advertised in the newspaper for expression of interest by the Architects who wish to take the project of constructing the building on the said land of Greater Noida. Although, PW1 has denied in the cross examination that he knew the defendant since 2009 and has stated that prior to it he has never met him. But he has admitted that various proposals were received during the period between 2005 to 2009 from the Architect. He has stated that he was not aware about any proposal that might have been made by the defendant in 2008. He also stated that it was not in his knowledge that defendant was meeting with Mr.J.D. Aggarwal, the Chairman of the plaintiff, in connection of the project on the land alloted to the institute. Therefore, in the face of the admission of the plaintiff in the cross examination that advertisement was initially made around 2005 and various proposals were received during the period 2005 to 2009 and the project in question was conceived and intended to be implemented from the year 2005 itself, the claim of the plaintiff alleging delay of some months and seeking compensation from the defendant looks to be unreasonable. When the plaintiff institute has taken several years to appoint defendant as consultant Architect in the year 2009 vide agreement Ex.D1, the alleged delay of some Indian Institute Vs Rajiv Narain 15 months and claim of the plaintiff towards rent paid by the plaintiff on account of this delay on the part of the defendant looks not reasonable and needs to be discarded. The plaintiff in the correspondence with the defendant vide letters Ex.PW1/2, Ex.PW1/5, Ex.PW1/9 and Ex.PW1/12 has not claimed that on account of delay on the part of defendant the plaintiff had to incur rental expenses nor claimed any such rental expenses though refund of amount of Rs.1 lakh is claimed.
36. As regards the claim of the plaintiff for refund of the amount of Rs.1 lakh which was initially paid by the plaintiff to the defendant, the defendant has admitted this payment and also set up the plea that he had completed the detailed working drawings for the administrative block to enable completion of tender package to be issued to prospective builders and has also undertaken detailed presentation on 29/30.04.2009 to the plaintiff. The defendant has also proved the said presentation Ex.DW1/C (colly). Therefore, it is not the case that the defendant has not done any work at all after execution of agreement Ex.D1. Therefore, plaintiff in my view, is not entitled to refund of Rs.1 lakh as claimed.
37. Coming to the counter claim of defendant relevant to issue no.2, the argument on behalf of plaintiff is that the counter claim of defendant is not in accordance with the provisions of Order 8 Rule 6A read with Rule 6B. The counter claim has to be duly stamped with proper court fee and has to be separately filed in the form of a plaint which can be replied by way of written statement of the plaintiff so this counter claim of defendant is not maintainable.
38. I have carefully taken note of this objection of the plaintiff. I do not find that this counter claim is not in accordance with Order 8 Rules 6A and 6B CPC. The stamp duty is already separately filed by the defendant. The claim of the defendant as counter claim is specifically mentioned in the written Indian Institute Vs Rajiv Narain 16 statement, therefore, Order 8 Rule 6A and B CPC stood duly complied with by the defendant. Even otherwise, the substantive rights of the parties should not be defeated by violation of procedural formalities by them.
39. The defendant has alleged that after the agreement Ex.D1 he has completed detailed working drawing for the administrative block as referred before. He has also alleged that he has short listed prospective builders and forwarded the credentials of such short listed contractors to the plaintiff for approval and also appointed structural contractor to complete the structural design of the administrative block of the building. The defendant's case is that a detailed presentation was made by him on 29-30 April 2009. The defendant has complied with the clause 5.12 of the contract Ex.D1. A bill of Rs.2,64,046/- (10% of 32,40,000 + service tax @ 12.36% - Rs. 1,00,000/-) in terms of Clause 5.12 of the LOA, copy of which was handed over to the plaintiff. Therefore, counter claim of the defendant deserves to be decreed.
40. The counter claim of the defendant is based on the alleged work done by him by completing detailed working drawing for administrative blocks to enable completion of the tender package to be issued to prospective builder and also alleged detailed presentation before plaintiff on 29/30.04.2009 referred before. It is pertinent to note that in response to the letter dated 23.7.2009 Ex.PW1/2 of the plaintiff wherein the plaintiff has demanded the refund of the amount of Rs.1 lakh, the defendant in the letter dated 28.8.2009 Ex.PW1/A which is heavily relied upon by the defendant, has alleged that defendant has spent a sum of Rs.1,41,000/- on the project for work which defendant was alloted by the plaintiff to the defendant. The defendant has also stated that after adjusting a sum Rs.1 lakh initially received by him a sum of Rs.41,000/- is still to be paid by the plaintiff to the defendant as retainer fee. Although, the letter Ex.PW1/A is not received by the plaintiff as per the case of the plaintiff but since it is not disputed that along with subsequent letter of defendant dated 11.11.2009 Ex.PW1/11, the Indian Institute Vs Rajiv Narain 17 defendant had enclosed the copy of the letter dated 28.08.2009, the said reply Ex.PW1/A dated 28.08.2009 is proved to be received by the plaintiff though belated. Therefore, this reply Ex.PW1/A contains the admission of the defendant on 28.08.2009 that after adjusting Rs.1 lakhs, the defendant was still to be paid Rs.41,000/-. If on 28.08.2009, the claim of the defendant was only of Rs.41,000/- against the plaintiff, how can it be enhanced to amount of Rs.3,05,046/-? Therefore, the counter claim of the defendant is highly inflated.
41. The letter dated 28.08.2009 Ex.PW1/A of the defendant to the plaintiff reflects the true and correct position. In this letter, the defendant has made efforts for refund of Rs.5000/- advanced by the plaintiff to be repaid by M/s Cengrs Geotechnica by sending a separate communication and in the alternative requested the plaintiff if the refund is not forthcoming then the same could be deducted from the amount of Rs41,000/- due to the defendant from the plaintiff. All these facts mentioned in the letter dated 28.08.2009 Ex.PW1/A look to be reasonable and just approach of the defendant towards the plaintiff by pointing out the correct retainer fee after adjusting of Rs.1 lakhs already given to the defendant. Hence, the counter claim of the defendant is unnecessarily is inflated to the amount of Rs.3,05,046/- In my view defendant is entitled to only Rs.41,000/- as indicated in letter Ex.PW1/A. The unfortunate circumstance is that agreement Ex.D1 could not be implemented completely due to lack of coordination and joint efforts of the parties for which both the parties are blaming each other. The document Ex.PW1/A, in my view, shows the correct amount which the defendant is entitled as counter claim from the defendant. Hence, the counter claim needs to be partially allowed in the sum of Rs.41,000/-.
42. In view of the above, Issue no.1 is decided in favour of the defendant and against the plaintiff. Issue no.2 is partially decided in favour of the defendant and I hold that defendant is entitled to a sum of Rs.41,000/- from the plaintiff. Issue no.2 is decided in favour of the defendant and against the plaintiff, Indian Institute Vs Rajiv Narain 18 accordingly.
ISSUE NO.3 RELIEF:
43. In view of the findings on Issue Nos.1 & 2, the suit of the plaintiff is dismissed. The counter claim of the defendant is partially decreed in the sum of Rs.41,000/-. In case the decreetal amount is not paid by plaintiff to defendant/ counter claimant by 10.07.2013 the plaintiff shall pay the decreetal amount of Rs. 41,000/- with pendente lite and future interest at the rate of 18% p.a from the date of filing the counter claim ie 12.11.2010 till realization of the decreed amount. In view of the peculiar facts and circumstances of the case, the parties are left to bear their own costs for the suit and the counter claim. Decree sheets be drawn accordingly. The judgment be sent to the server (www.delhidistrictcourts.nic.in). File be consigned to record room. Announced in the open court on 20th May 2013 (S. K. SARVARIA) DISTRICT & SESSIONS JUDGE (N/W) ROHINI DISTRICT COURTS, DELHI Indian Institute Vs Rajiv Narain