Delhi District Court
M/S R. D. Varma And Company Pvt. Ltd vs Tulip Broadcon Pvt. Limited on 25 August, 2025
IN THE COURT OF SH. PULASTYA PRAMACHALA,
DISTRICT JUDGE (COMMERCIAL COURT)-01,
PATIALA HOUSE COURTS, NEW DELHI
INDEX
Sl. HEADINGS Page Nos.
No.
1 Description of Case & Memo of Parties 2
2 Brief Facts of the Case of the Plaintiff/Non- 3-5
Counter- Claimant Case
3 Plea of Defendant in Written Statement 5-6
4 Plea of Defendant/Counter Claimant in its 6-7
Counter Claim
5 Replication to the Written Statement and 7-8
Reply to the Counter Claim of the Defendant
6 Plaintiff/Non-Counter-Claimant Evidence 8-10
7 Defendant Evidence 10
8 Issue No.1 11-12
9 Issue No.2 & 4 12-20
10 Issue No.3 20-21
11 Issue No.5 21
12 Relief 21-22
Digitally
signed by
PULASTYA
PULASTYA PRAMACHALA
PRAMACHALA Date:
2025.08.25
18:08:36
+0530
CS 886/2018 & (Pulastya Pramachala)
COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 1 of 22
In the matter of CS (COMM.) 886/2018:
Tulip Broadcon Pvt. Limited
A Company incorporated
Under the Companies Act, 1956,
Having its registered office at:
586/6, 2nd Floor, Govindpuri, C. Lal chowk,
Opp. Okhla Industrial Area Phase-II,
New Delhi-110019. ...Plaintiff
Versus
M/s R.D. Verma & Co. (P) Ltd.
A Company incorporated
Under Companies Act, 1956,
Having its Registered office at
16th Floor, Gopal Dass Bhawan,
28, Barakhamba Road, New Delhi-110001. ...Defendant
AND
In the matter of Counter Claim 37/2022
M/s R.D. Verma & Co. (P) Ltd.
A Company incorporated
Under Companies Act, 1956,
Having its Registered office at
16th Floor, Gopal Dass Bhawan,
28, Barakhamba Road, New Delhi-110001.
...Counter-Claimant
Versus
Tulip Broadcon Pvt. Limited
A Company incorporated
Under the Companies Act, 1956,
Having its registered office at:
586/6, 2nd Floor, Govindpuri, C. Lal chowk,
Opp. Okhla Industrial Area Phase-II,
New Delhi-110019. ... Non-Counter-Claimant
Date of Institution of the suit : 01.06.2019
Date of Institution of the Counter Claim : 13.08.2019
Conclusion of arguments : 12.08.2025
Date of Judgment : 25.08.2025
CS 886/2018 & (Pulastya Pramachala)
COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 2 of 22
Decision: Suit of plaintiff is decreed and counter claim of
defendant is dismissed.
JUDGMENT
1. This is a suit for recovery of Rs.17,43,191/- (Rupees Seventeen Lakhs Forty Three Thousand One Hundred and Ninety one) alongwith pendente and future Interest @18%, filed under the provisions of the Commercial Courts Act, 2015.
BRIEF FACTS OF THE PLAINTIFF/NON-COUNTER-
CLAIMANT CASE
2. The plaintiff is a company duly incorporated under the provisions of the Companies Act, 1956. It is the case of the plaintiff that, by virtue of a Letter of Intent dated 16.05.2013 bearing No. RRA/RD/LOI Civil-002, the plaintiff was awarded a contract for execution of civil structure works pertaining to the construction of EWS blocks for the residential project titled "Palm Grove Heights" situated at Ardee City, Sector-52, Gurugram, Haryana. It is further averred that the total value of the work awarded under the aforesaid Letter of Intent was Rs.1,60,27,513/-, and after including service tax @ 4.994% amounting to Rs.8,00,414/-, the cumulative value stood at Rs.1,68,27,927/-.
3. It is pleaded that for the supervision of the said works, the defendant appointed M/s RRA Project Management (P) Ltd. as its consultant, under whose directions and supervision the plaintiff executed the work. The plaintiff has further averred that the arrangement for payment towards the work executed, was such that the running account (RA) bills raised by the plaintiff CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 3 of 22 were to be submitted first to the said consultant, who would verify and certify the bills for payment, and based on such verification, the defendant would release the payment.
4. The plaintiff has further alleged that the defendant, though under no contractual obligation, illegally and arbitrarily deducted security deposit @ 5% of each RA bill, amounting in aggregate to Rs.8,82,001/-. It is the case of the plaintiff that, after payment of the 9th RA bill, it continued to execute further works up to June 2017 and raised the 10th RA bill dated 11.05.2017 for an amount of Rs.5,58,653/-. It is alleged that despite repeated requests, personal meetings, and follow-ups, the defendant failed to release the payment of the 10th RA bill and it also withheld security deposit. The plaintiff contends that the withholding of the aforesaid amounts is illegal, arbitrary, and in breach of the contractual terms, and that the defendant is also liable to pay interest @ 18% per annum on the delayed amount from 11.06.2017 onwards.
5. In these circumstances, the plaintiff served a legal notice dated 04.07.2018, demanding payment of the outstanding amount of Rs.14,40,654/-. However, despite receipt of the notice, the defendant failed to comply. Hence, the present suit has been instituted for recovery of Rs.17,43,191/- (Rupees Seventeen Lakhs Forty-Three Thousand One Hundred and Ninety-One only) alongwith pendente lite and future interest @ 18% per annum from the date of institution till realization.
6. It has been pleaded that this court has territorial jurisdiction to try and adjudicate this case as defendant is having its registered CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 4 of 22 office at Barakhamba Road, New Delhi, which is within the jurisdiction of this court. Therefore, this present suit is well within territorial jurisdiction of this court.
7. Plaintiff approached New Delhi DLSA for Pre-Litigation Mediation under Section 12A of Commercial Courts Act , but the defendant did not appear despite notice. Non-starter report dated 26.03.2019 was filed by the plaintiff.
PLEA OF DEFENDANT IN WRITTEN STATEMENT
8. The defendant entered appearance upon service of summons and filed its written statement raising, inter alia, the following preliminary objection. It is contended that the present suit is not maintainable in law as the person who has instituted the suit, namely Mr. Ajay Kumar Sharma, is not duly authorized to do so. It is averred that the alleged authorization in his favor is invalid, as there is no resolution of the Board of Directors of the plaintiff company authorizing him to sign, verify and institute the present proceedings.
9. On merits, the defendant has denied the case set up by the plaintiff. It is pleaded that although the plaintiff was awarded some construction work relating to EWS blocks, the document dated 16.05.2013 described as a Letter of Intent and relied upon by the plaintiff is not signed or executed by the defendant. It is further averred that M/s RRA Project Management Pvt. Ltd. was never appointed or authorized by the defendant as its consultant to verify the bills, and any certification purportedly given by the said entity is without authority and of no legal effect. The defendant categorically denies that payments were made on the CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 5 of 22 basis of such certification.
10. The defendant further contends that the plaintiff failed to complete the awarded works. While certain payments were released to the plaintiff from time to time, upon final settlement of accounts it was revealed that the plaintiff had been paid in excess of the amount actually due. It is alleged that the works relating to kitchens, toilets, plastering, flooring, doors and windows of EWS units were left incomplete. Therefore, the defendant asserts that no amount remains payable to the plaintiff and that the claim for security deposit is baseless.
11. On the contrary, the defendant avers that on finalizing the accounts, it was found that the plaintiff had received excess payment to the tune of Rs.47,95,596/- in respect of the EWS works and ramp work in C-1 Tower at Ardee City, Gurugram, which the plaintiff is liable to refund to the defendant.
PLEA OF DEFENDANT/COUNTER CLAIMANT IN ITS COUNTER CLAIM:
12. The defendant, being a company incorporated under the Companies Act, has filed the present counter-claim asserting that although the plaintiff commenced the execution of the awarded works, it acted negligently, failed to perform the work honestly and diligently, and ultimately abandoned the work, leaving it incomplete. It is alleged that the incomplete and substandard work caused loss and damage to the defendant to the tune of Rs.75,00,000/-.
13. The defendant further states that despite repeated requests and reminders to the plaintiff to complete the unfinished work, CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 6 of 22 including the EWS works and the ramp work in Tower C-1, the plaintiff failed and neglected to do so.
14. The defendant averred that, as per the accounts maintained by it in the ordinary course of business, a sum of Rs.47,95,596/- (Rupees Forty-Seven Lakhs Ninety-Five Thousand Five Hundred and Ninety-Six only) is lawfully recoverable from the plaintiff. Accordingly, the defendant has instituted the present counter- claim seeking recovery of the aforesaid amount together with interest as per law.
REPLICATION TO THE WRITTEN STATEMENT AND REPLY TO THE COUNTER CLAIM OF THE DEFENDANT
15. Replication was also filed by the plaintiff to the written statement of the defendants and reply to the counter claim, controverting the preliminary objections as not sustainable and further denying and controverting the averments of the written statement and counter claim on merits. The plaintiff reiterated its averments contained in the plaint.
16. Vide order dated 12.03.2020 following issues were framed: -
16.1. Whether the suit has been properly instituted by the duly authorized person on behalf of plaintiff ? OPP 16.2. Whether plaintiff is entitled for the recovery of the suit amount of Rs.17,43,191/- inclusive of interest of Rs.3,02,537/- ? OPP.
16.3. Whether the plaintiff is entitled to further interest, if so, at what rate and for what period? OPP.
16.4. Whether defendant is entitled to recovery of
CS 886/2018 & (Pulastya Pramachala)
COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 7 of 22
Rs.47,95,596/- from the plaintiff in terms of amount so preferred ? OPD 16.5. Whether defendant is entitled to cost and interest, if so, at what rate and for what period? OPD.
16.6. Relief.
17. After framing of issues, case management hearing was conducted and dates were fixed for plaintiff's evidence, defendant's evidence and final arguments.
PLAINTIFF/NON-COUNTER-CLAIMANT EVIDENCE
18. In its evidence, plaintiff had examined two witness. PW-1 Sh.
Ajay Kumar Sharma, its Authorized Representative and Erstwhile Director of plaintiff company and PW-2 Sh. Rajneesh Tyagi, Director of plaintiff company.
19. PW-1/Sh. Ajay Kumar Sharma, AR of the plaintiff claimed authorization vide board resolution dated 14.08.2018. He tendered his affidavit dated 12.10.2020 in evidence as Ex.PW-1/A, and additional affidavit dated 02.11.2022 as Ex.PW-1/B and referred to and proved following documents: -
S. NO Documents Exhibit
1 True Copy of Memorandum and Ex.PW-1/1
Articles of Association of the (OSR)
company
2 Board resolution dated 14.08.2018 Ex.PW-1/2
(objected to with
respect to the mode
of proof)
3 True copy of letter dated 16.04.2019 Ex. PW1/D1
4 Form No. DIR 12 Ex. PW1/D2
CS 886/2018 & (Pulastya Pramachala)
COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 8 of 22
S. NO Documents Exhibit
(running into page
no. 24-28)
5 Copy of letter of intent Ex.PW-1/3
(objected to with
respect to the mode
of proof)
6. Copy of the 10th and final bill Ex.PW-1/5
(objected to with
respect to the mode
of proof)
7. Copy of Ledger account of the Ex.PW-1/6
plaintiff in the books of defendant. (objected to with
respect to the mode
of proof)
8. legal notice along with postal receipt Ex.PW-1/7 (colly) and delivery report
9. Copies of 9 running bills raised by Ex.PW-1/8 (Colly) the plaintiff upon the defendant, (objected to with running into 36 pages. respect to the mode of proof)
10. Printout of emails (running into 17 Ex.PW-1/9 (Colly) pages).
11. Certificate under Section 65 B of Ex.PW-1/10 Indian Evidence Act.
20. PW-2, Sh. Rajneesh Tyagi, Director of Company authorized vide board resolution dated 02.05.2019. He tendered his affidavit as Ex.PW2/A and referred to and proved following documents: -
S. NO Documents Exhibit
1 True Copy of Memorandum and Ex.PW-1/1
Articles of Association of the company (OSR) 2 Board resolution dated 02.05.2019 Ex.PW-2/1 CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 9 of 22
21. PW-1 and PW-2 were cross-examined by ld. Counsel for the defendant at length. Thereafter, vide order dated 03.11.2022, plaintiff closed its evidence.
DEFENDANT EVIDENCE
22. In their defense evidence, defendant examined one witness.
DW-1 and CC-1/Sh. Chandji Bhat, Account officer/AR of the defendant company, who claimed being authorized vide board resolution dated 07.08.2019, tendered his affidavit in evidence as Ex. DW-1/A and Ex.CC1/A. He referred to and proved following documents: -
S. NO Documents Exhibit 1 Copy of Board Resolution Ex.DW-1/1 dated 07.08.2019 (OSR) 2 True Copy of Photographs Ex.DW-1/2
3. Certified copy of Bank Ex.CC-1/1 statement with respect to EWS Flats
4. Summary with reference to Mark CC-1/2 bank statement of EWS Flats
5. Certified copy of Bank Ex.CC-1/3 statement with respect to ramp work
6. Summary with reference to Mark CC-1/4 bank statement of ramp work
7. Certificate under Section 65B Ex.CC-1/5 of Indian Evidence Act
23. DW-1/CC-1 was cross-examined by Ld. Counsel for plaintiff at length. Thereafter, vide order dated 13.03.2024 defendant closed its evidence.
CS 886/2018 & (Pulastya Pramachala)
COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 10 of 22
24. I heard ld. counsels for the parties and have perused the record carefully. My issue-wise findings in the present matter are as under: -
ISSUE NO. 1: Whether the suit has been properly instituted by the duly authorized person on behalf of plaintiff ? OPP.
25. The onus to prove this issue rested upon the plaintiff. From the perusal of the record, it is noted that the suit was initially instituted on 12.09.2018 by PW-1, Sh. Ajay Kumar Sharma, seeking recovery of Rs.17,43,191/-. However, the said filing was without compliance of the mandatory requirement of pre- institution mediation under Section 12A of the Commercial Courts Act, 2015. Consequently, Ld. ADJ directed the plaintiff to approach the DLSA for compliance. After obtaining the Non- Starter Report, the plaintiff revived the suit in its original number on 01.06.2019.
26. The plaintiff has argued that PW-1, Sh. Ajay Kumar Sharma, was duly authorized to institute the initial suit by virtue of a Board Resolution dated 14.08.2018. As per affidavit Ex.PW1/A, it has come on record that PW-1 was a Director of the plaintiff company at the time of institution of the suit and who subsequently tendered his resignation on 16.04.2019. Thereafter, PW-2, Sh. Rajneesh Tyagi, was appointed as Director and was authorized to pursue the present proceedings vide Board Resolution dated 02.05.2019. Hence, according to the plaintiff, the suit stands properly instituted by duly authorized representatives at all stages.
27. The record demonstrates that PW-1 exhibited the extract of CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 11 of 22 Board Resolution dated 14.08.2018 as Ex.PW-1/2. The suit was instituted on 12.09.2018 when PW-1 was duly authorized to act on behalf of the plaintiff. Furthermore, Form DIR-12 (Ex.PW-1/D2) evidences that the resignation of PW-1 took effect on 17.04.2019, and after that PW-2, Sh. Rajneesh Tyagi, was appointed as Director of the plaintiff company. When the present suit was revived on 01.06.2019, PW-2 had already been authorized by virtue of Board Resolution dated 02.05.2019 (Ex.PW-2/1). Even PW2 reteiterated in affidavit Ex. PW2/A that PW1 was Director of the Plaintiff company at the time of filing this suit. Ld. Counsel for defendant did not dispute the status of PW1 being director on the date of filing of this suit. He did not challenge the correctness of plea vouched by PW2 in his affidavit. Thus, these documents, read together, conclusively establish that both the initial institution and subsequent continuation of the suit were undertaken by duly authorized persons. The defendant, despite cross-examining PW-1 and PW-2, failed to bring out any material contradiction, nor did it produce any document to substantiate its plea that the suit was unauthorized.
28. In view of the foregoing discussion, I hold that the plaintiff has successfully discharged the burden of proof. Accordingly, Issue No. 1 is decided in favour of the plaintiff and against the defendant.
ISSUE NO.2: Whether Plaintiff is entitled for the recovery of the suit amount of Rs.17,43,191/- inclusive of interest of Rs.3,02,537/- ? OPP.
And
CS 886/2018 & (Pulastya Pramachala)
COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 12 of 22
ISSUE NO. 4: Whether defendant is entitled to recovery of Rs.47,95,596/- from the plaintiff in terms of amount so preferred ? OPD FINDINGS:
29. I am taking up both the aforesaid issues together, because analysis of rival plea and evidence for both these issues would be common. The onus to prove issue-2 was upon the plaintiff. In order to substantiate its claim, the plaintiff examined PW-1, Sh. Ajay Kumar Sharma, and PW-2, Sh. Rajneesh Tyagi, who deposed in consonance with the pleadings and proved various documents placed on record. It is not in dispute that both parties entered into a Letter of Intent dated 16.05.2013 for execution of civil structure work including construction of EWS blocks, for an agreed value of Rs.1,68,27,927/-.
30. The plaintiff contends that the 10th and final RA Bill, amounting to Rs.5,58,653/-, was raised on 11.05.2017 but remained unpaid despite repeated reminders. It is further asserted by the plaintiff that all previous RA Bills were duly verified and certified by the Project Management Consultant I.e. M/s RRA Project Management Pvt. Ltd., and were paid accordingly. Certificates issued by the said consultant are reflected on the RA Bills which have been proved as Ex.PW1/8 colly. The plaintiff further asserted that the defendant deducted security at the rate of 5% from every running bill, aggregating to Rs8,82,001/-. Despite submission of the final bill and repeated communications including emails (Ex. PW-1/5A, Ex. PW-1/9) and a legal notice (Ex. PW-1/7), the defendant failed to release either the amount of the 10th bill or the security deposit.
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COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 13 of 22
31. Per contra, learned counsel for the defendant argued that two Letters of Intent existed between the parties and the contract value was fixed without scope for variation. It was further contended that the email dated 29.06.2017 relied upon by the plaintiff was never approved by the defendant, and the plaintiff failed to examine Sh. Chandan Lakhanpal, who allegedly corresponded on behalf of the consultant. It was also argued that while the first nine RA Bills were raised between July 2013 and December 2014, the 10th bill was raised after an unexplained delay of more than two and a half years, which raises doubts regarding its authenticity. Defendant also asserted that the plaintiff failed to complete the work within the stipulated period and left several components such as kitchens, toilets, plastering, flooring, doors, and windows incomplete.
32. At this stage, it is pertinent to address the first objection raised by the defendant pertaining to the alleged non-authorization of M/s RRA Project Management Pvt. Ltd. as the consultant for certification of the RA Bills. A careful examination of the record demonstrates that all the Running Account (RA) Bills, preceding the disputed bill, bear endorsements and certification by M/s RRA Project Management Pvt. Ltd., and such bills were duly acted upon by the defendant without any objection for the release of payments. The certificates marked "For RRA Project Management" are clearly visible on the RA Bills exhibited as Ex. PW-1/8.
33. Furthermore, during the course of cross-examination, DW-1 unequivocally admitted that RRA Project Management was CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 14 of 22 associated with the defendant as its consultant. This admission corroborates the plaintiff's case regarding the authority of the said consultant. It is worth to mention that in written statement, defendant denied any contract with any consultant, which was falsified by the admission on the part of DW1. Additionally, the plaintiff confronted DW1 and placed on record documents from a connected proceedings (Ex. DW-1/P-1), which reveal that similar bills, certified through the same consultant, were honored by the defendant without objection. In the connected suit no. CS (Comm) 64/18 between same parties, PW1 was cross examined by same counsel for defendant herein. In that cross examination, defence counsel himself suggested to PW1 that after verification of the bills by Sh. Chandan Lakhan Pal, the bills used to go to the defendant for payment. In that cross examination itself PW1 had stated that role of R. R.A. Project Management was to supervise the work and verify the bills. PW1 while responding to question of defence counsel stated that he knew Chandan Lakhan Pal and further described that Chandan Lakhan Pal used to verify the bills on behalf of R.R.A. Project Management. Defence did not dispute all such facts.
34. Significantly, the defendant has neither produced any document nor led any cogent evidence to negate its association with M/s RRA Project Management or to prove that the consultant lacked authorization for the certification of the RA Bills.
35. In light of the above discussion, it is evident that the objection raised by the defendant regarding the lack of authorization of M/s RRA Project Management Pvt. Ltd. is devoid of merit and CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 15 of 22 cannot be sustained.
36. Coming now to the aspect of security deposit deductions, the record reveals that 5% of the bill amount was consistently deducted under the head "security" from each RA Bill, culminating in a total deduction of Rs.8,82,001/-. This fact is substantiated by the documents exhibited as Ex. PW-1/8, as well as the defendant's own documents marked as CC-1/2 and CC-1/4, which contain explicit columns reflecting security deductions. Furthermore, DW-1 has admitted during cross- examination that such deductions were indeed made from the plaintiff's bills. However, the defendant has not brought forth any evidence to establish that these deductions were subsequently adjusted, refunded, or otherwise settled in favor of the plaintiff. Therefore, it stands conclusively proved that the security deposit amounting to Rs.8,82,001/- remains unpaid by the defendant.
37. With regard to the 10th RA Bill, the record clearly indicates that the plaintiff raised the said bill vide letter dated 11.05.2017 (Ex. PW-1/5), followed by email communications exhibited as Ex. PW-1/9, and a legal notice dated 04.07.2018 (Ex. PW-1/7). The defendant has never rebutted the receipt of these communications. No record or reply has been placed on record by the defendant to dispute the same. The complete failure on the part of the defendant to respond to the repeated demands and notices, strengthens the plaintiff's case that the 10th RA Bill was duly raised and remains unpaid.
38. The onus to prove issue no. 3 was on the defendant. In order to CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 16 of 22 discharge this onus, the defendant examined one witness, namely DW-1/ CC-1, Shri Chandji Bhat, the Authorised Representative of the defendant company. DW-1 deposed on the lines of the averments made in the counterclaim and sought to substantiate their claim by proving various documents referred.
39. It is the argument of the defendant that the plaintiff commenced the work without exercising due diligence and failed to complete the work, thereby causing loss and damage to the defendant to the tune of Rs.75,00,000/-. It is further contended that as per the accounts maintained by the defendant in the ordinary course of business, a sum of Rs.47,95,596/- remains recoverable from the plaintiff.
40. The defendant has further argued that the plaintiff did not complete the contractual work within the stipulated period of six months as mentioned in the Letter of Intent. It was submitted that due to this delay, the plaintiff forfeited its right to claim any amount from the defendant. To substantiate this contention, the defendant placed reliance on certain photographs of the alleged incomplete work, exhibited as Ex. DW-1/2.
41. On perusal of the record, it is apparent that the defendant has not filed any document to demonstrate that the plaintiff had delayed the completion of the work against wishes of the defendant. There is no evidence to show that the defendant had, at any point, issued a notice, lodged a complaint, or addressed any communication to the plaintiff raising concerns about the alleged delay. Mere filing of photographs, without any corroborative evidence such as letters, notices, or correspondence, is wholly CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 17 of 22 insufficient to establish the claim of delay on the part of the plaintiff. These photographs were not admitted documents and defendant/DW1 did not prove them in accordance with law. These photographs cannot lead to any inference, also because they reflect as to which particular property has been shown in the same. There is no whisper in the affidavit of DW1 as to who had clicked these photographs? When were these photographs clicked? There is no certificate under Evidence law in respect of these photographs (if they were taken through Digital Camera) nor any negative of the same were proved.
42. To support its contentions, the defendant has filed certified copies of bank statements, exhibited as Ex. CC-1/1 and Ex. CC-1/3. However, upon careful examination of the pleadings, it is observed that while the defendant has initially alleged that the plaintiff caused a loss of Rs.75,00,000/- due to delay, the counterclaim is restricted to Rs.47,95,596/-. Such a variation in figures creates doubt as to the veracity and consistency of the defendant's claim. Furthermore, the bank statements relied upon by the defendant do not clearly indicate or establish that a sum of Rs.47,95,596/- is due from the plaintiff. The statements are not self-explanatory and do not disclose any link to the contractual transactions in question.
43. It is also worth to mention that despite service of notice under Order XII Rule 8 CPC by the plaintiff, defendant did not produce the ledger book having account of the plaintiff. DW1 did not dispute receiving aforesaid notice. In fact a reply was also filed to that notice by the defendant. Such omission on the part of CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 18 of 22 defendant, lends credence to the claim of plaintiff and an adverse inference has to be raised against the defendant. Defendant had to show as to what was claimed by the plaintiff, what was payable to the plaintiff and what amount in excess was actually paid to the plaintiff.
44. The defendant neither filed any ledger account pertaining to the transactions with the plaintiff nor produced any document to demonstrate that the said amount is legally recoverable from the plaintiff. In my considered view, the filing of two unclear bank statements, without any supporting documents such as ledger, account, or any letters of communications made at that time, do not discharge the burden of proof cast upon the defendant. This view is further fortified by the cross-examination of DW-1, wherein he admitted that the amount claimed in the counterclaim as excess payment allegedly made to the plaintiff does not correspond to the entries in the exhibited bank statements (Ex. CC-1/1 and Ex. CC-1/3).
45. Most interestingly, defendant has not even pleaded that on what particular point of time, the alleged excess payment was made to the plaintiff. Limitation to claim recovery of any due amount can be counted from the date when it becomes due. If any amount was paid in excess, it remained due against plaintiff since that particular date, when such payments were made in excess. Defendant has not disclosed any such date or any bill against which the excess payments were made.
46. Thus, from the cumulative effect of the evidence adduced on the record, it is established on preponderance of probabilities that:
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COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 19 of 22
(i) Security deposits totaling to Rs.8,82,001/- was deducted by the defendant and has not been refunded; and
(ii) The 10th RA Bill for Rs.5,58,653/- was duly raised by the plaintiff and has been unjustifiably withheld by the defendant.
47. In the light of the foregoing discussions, I am of the considered view that the plaintiff has successfully proved its entitlement to the recovery of ₹17,43,191/- against the defendant based on the documentary evidence placed on record and defendant has failed to prove its claim under.
48. Accordingly, Issue No. 2 is decided in favor of the plaintiff and against the defendant and Issue No. 4 is decided against the defendant.
ISSUE NO. 3: Whether the plaintiff is entitled to further interest, if so, at what rate and for what period? OPP.
49. The onus to prove this issue was on the plaintiff. The plaintiff has claimed interest on the amount due. However, no contractual document or specific agreement has been produced to show any agreed rate of interest between the parties. In the absence of any such stipulation, the court is empowered under Section 34 of the Code of Civil Procedure to award interest at a reasonable rate on the principal sum adjudged, from the date of institution of the suit till realization.
50. Having regard to the facts and circumstances of the case and nature of transaction between the parties, the plaintiff is held entitled to interest at the rate of 9% per annum from the date of filing of the suit till realization of the decretal amount.
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COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
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51. The plaintiff has also claimed the cost of the suit. In reference to Section 35 and 35A of CPC, it has been proved that defendant failed to pay the amount due despite service of legal notice. The defendant is responsible for burdening the plaintiff with this litigation and so he is liable to bear the cost to the extent of Court fee and lawyers fee etc. The plaintiff is therefore, entitled for the cost of litigation as per rules. Advocate's Fee certificate be filed by the plaintiff within ten days.
ISSUE NO. 5: Whether defendant is entitled to cost and interest, if so, at what rate and for what period? OPD.
52. Since Issue No. 4 has already been decided against the defendant and its claim for recovery of Rs.45,00,000/- has been declined, the question of granting interest on the said amount does not arise. Furthermore, as the defendant has failed to establish any entitlement to the principal claim, there is no basis for awarding costs in its favor. Accordingly, this issue is decided against the defendant and in favor of the plaintiff.
RELIEF:
53. In view of the above observations, discussion and findings, the suit (CS. 886/18) for recovery is decreed in favour of the plaintiff and against the defendant for Rs.17,43,191/- (Rupees Seventeen Lakhs Forty Three Thousand One Hundred and Ninety one), payable along with pendente lite and future interest @ 9% per annum from the date of filing of the suit till realization of the decretal amount. Cost of the suit is also awarded in favour of the plaintiff and against the defendant as per rules. Advocate's Fee certificate be filed by the plaintiff within 10 days.
CS 886/2018 & (Pulastya Pramachala)
COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01,
Patiala House Court, New Delhi
Page 21 of 22
54. The counterclaim no. 37/22 of the defendant for recovery of Rs.
45,00,000/- (Rupees Forty-Five Lakhs) is hereby dismissed. The defendant is not entitled to any amount on account of the alleged claim, nor to any interest or costs.
55. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
Digitally signed by PULASTYA PRAMACHALAPULASTYA PRAMACHALA Date:
2025.08.25 18:08:42 +0530 Pronounced in the (PULASTYA PRAMACHALA) Open Court on this District Judge (Commercial Court)-01, th 25 Day of August, 2025 Patiala House Court, New Delhi CS 886/2018 & (Pulastya Pramachala) COUNTER CLAIM 37/2022 District Judge (Commercial Court)-01, Patiala House Court, New Delhi Page 22 of 22