Delhi District Court
Delhi Public School Society vs M/S Nugas Technologies Pvt Ltd on 29 January, 2014
Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd
IN THE COURT OF VIPLAV DABAS
CIVIL JUDGE-11 (CENTRAL) : DELHI
Civil Suit No. : 59/13
Unique Case ID No : 02401C0217292005
In the matter of:
1. Delhi Public School Society
DPS Staff Flats
F-Block, East of Kailash,
New Delhi
Through its Secretary
2. Delhi Public School
Sector-C, Pocket-V,
Vasant Kunj,
New Delhi
Through its Principal cum Manager
Mr. Vinay Kumar .............. Plaintiffs
Vs
M/s Nugas Technologies Pvt Ltd
Though its Managing Director
/Principal Officer,
A-21-22, G.T.Karnal Road,
Industrial Area, Azadpur Road, Delhi.
Also at
Registered Office, 30-31, Municipal Market,
Cannuaght Circus, New Delhi-110001 ............... Defendant
Date of institution of the Suit : 15.03.2005
Date on which order was reserved : 29.01.2014
Date of decision : 29.01.2014
SUIT FOR RECOVERY OF Rs. 3, 00,000/-(Rupees Three Lacs Only)
JUDGMENT
1) Present suit was filed in the year 2005 seeking recovery of Rs. 3,00,000/- alongwith pendentelite and future interest @ 18 % in favour of the plaintiffs and against the defendant.
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2) It is averred in the plaint that the plaintiff no.1 is a society registered under the Societies Registration Act 1860 having its registered office at DPS Staff Flats, F-Block, East of Kailash, New Delhi, that the plaintiff no.2 is a unaided private school duly recognized by the Director of Education, Government of NCT of Delhi situated at Sector-C, Pocket-4 and 5, Vasant Kunj and being run and managed by plaintiff no.1, that the defendant represented that it is an associate of M/s Saya Automobiles Ltd situated at G.T.Karnal Road, Opposite Gurudwara Hargobind Enclave, Delhi and Mr. Ramesh Handa, Managing Director of M/s Saya Automobiles Ltd is also one of the director of the defendant and that the plaintiff no.2 for transporting the students and for their benefits owns the following six buses besides other buses:-
a) DL IPA 2653
b) DL 1PA 2663
c) DL 1PA 5039
d) DL 1PA 1153
e) DL 1PA 1863
f) DL 1PA 1864
It is further averred that on the order of Hon'ble Supreme Court the plaintiff no.2 decided to get its abovesaid six buses converted from being run on diesel to being run on CNG, that defendant also submitted a quotation of necessary requirements for completing work to the satisfaction of the plaintiffs, that on the demand of defendant the plaintiff no.2 paid Rs. 1 lac per bus as an advance money to the defendant which was to adjusted in the final bill raised for each and every bus vide receipt no. 011 to 016 dated 28.03.2001 but after receiving the advance amount of Rs. 6 lacs for the conversion of the buses the defendant vide letter dated 04.09.2001 intimated the plaintiff 2/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd no.2 that the certificate issued by Indian Institute of Petroleum Dehradun authorizing them to convert all type of diesel buses into a CNG mode was a valid one and also requested the plaintiff no.2 to send the buses for conversion, that the letter was received by plaintiff no.2 on 10.09.2001 and as the deadline was expiring on 30.09.2001, all the six buses were sent for conversion but the defendant failed to under take the job on the pretext of heavy rush, that on great persuasion and written communications the defendant completed the job work after about one and half year with respect to three buses bearing no. DL 1PA 2653, DL 1PA 2663 and DLIPA 5039 but failed to carryout the conversion job of other buses on one or other pretext and finally declined to do despite receiving of Rs. 3 lacs and that the defendant is liable to pay an amount of Rs. 3 lacs alongwith interest @ 18 % per annum.
It is further averred that the cause of action arose when the plaintiff booked six buses for conversion from diesel to CNG mode, when defendant received a total amount of Rs. 6 lacs@ Rs. 1 lac per bus as an advance amount and issued receipts dated 28.03.2001, that the cause of action again arose when the defendant converted the bus no. DL 1PA 2653 and accepted an amount of Rs. 3,32,903/- on 24.06.2002, that it again arose when the job work of two buses was carried out on 02.08.2002 and 04.09.2002 and defendant accepted the payment for the aforesaid work, that it again arose when the defendant declined to complete the job work of remaining three buses and when plaintiff no.2 demanded payment of Rs. 3 lacs and that it again arose when the legal notice was sent to the plaintiffs.
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3) It is averred in the written statement filed on behalf of defendant that present suit is bad for a lack of cause of action against the defendant, that six buses were booked by plaintiff no.2 for conversion into compressed natural gas for which defendant received a sum of Rs. 6 lacs @ Rs. 1 lac per bus vide receipt bearing no. 011 to 016, that post conversion of the three buses bearing registration number as DL 1PA 2653, DL 1PA 5039 and DL 1PA 2663, the plaintiff no.2 did not send other three buses bearing registration number DL 1PA 1153, DL 1PA 1863 and DL 1PA 1864 to the defendant for the purpose of conversion as the same had already been converted to CNG from other agency, that the defendant had rightly forfeited the amount of Rs. 6 lacs as the plaintiff did not send the said three buses for conversion purposes and had got them converted from other retro fitter, that the suit has not been correctly valued for purposes of Court Fee and jurisdiction and that the suit is not verified as per Law. It is denied that the buses bearing registration no. DL 1PA 2663 and DL 1PA 5039 fetched a completion of conversion on 03.04.2003 and 02.04.2003 respectively. It is denied that the plaintiffs have issued or defendant has fetched a receipt of notice or that the defendant is illegally withholding the alleged sum or has failed to undertake the conversion of said buses. It is further denied that the defendant is liable to pay an outstanding amount of Rs. 3 lacs to the plaintiffs. It is further denied that the cause of action ever arose in favour of the plaintiffs and against the defendant.
4) In replication filed on behalf of the plaintiffs to written statement of 4/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd defendant, all the contrary contentions of the defendant were denied by the plaintiffs and the contents of the plaint were re-affirmed.
5) On the basis of the pleadings of the parties following issues were framed on 25.10.2010 by the Ld. Predecessor Court.
1) Whether the plaintiff is entitled to decree of Rs.3 lacs? OPP.
2) Whether the plaintiff is entitled to interest as well as pendentelite interest @ 18 % per annum? OPP.
3) Whether the suit has been filed by duly authorized person?
OPP.
4) Whether there is any cause of action against the
defendant? OPD.
5) Whether the booking receipts are valid binding
contract as to entitle to forfeit the booking sum? OPD
6) Relief.
6) Plaintiffs led evidence in order to establish their case and examined Sh. Mukesh Gupta as PW-1 by filing his evidentiary affidavit Ex. PW-1/1 who relied upon the following documents i.e copy of plaint, Registration Certificate & Memorandum of Association, copy of Registration Certificate of buses, original receipts, copies of letters, original invoices, legal notice and postal receipts exhibited as PW-1/A to Ex. PW-1/I(colly). The plaintiff also brought witnesses namely Sh. R.Taneja (PW-2) Secretary, Delhi Public School Society and Smt. Bindu Sehgal (PW-3), Principal, Delhi Public School who were also examined, cross examined and discharged. Thereafter, the plaintiff's evidence was closed on recording of statement of Ld. Counsel for plaintiffs. The Defendant did not lead DE despite opportunity and right of the defendant to lead DE was closed vide order dated 01.10.2013.
5/16Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd Thereafter, matter was fixed for final arguments.
7) I have carefully gone through the material available on record and heard the arguments advanced by Ld. Counsel for parties. The issue wise findings are as under:-
The issues bearing no. 1 to 5 being interconnected are decided together in the following order:-
Issue No.3 Whether the suit has been filed by duly authorized person? OPP.
Issue No.5 Whether the booking receipts are valid binding contract as to entitle the defendant to forfeit the booking sum? OPD.
Issue No.1 Whether the plaintiff is entitled to decree of Rs. 3 Lacs? OPP.
Issue No.2 Whether the plaintiff is entitled to interest as well as pendentelite interest @ 18 % per annum? OPP.
Issue No.4 Whether there is any cause of action against the defendant? OPD.
It is deposed by the plaintiffs' witnesses in their evidentiary affidavits that the plaintiff no.2 through its principal Sh. Vinay Sharma paid a sum of Rs. 6 lacs @ Rs. 1 lac per bus on demand of the defendant as advance money which was to be adjusted in the final bill raised for conversion of six buses of the plaintiffs to the CNG mode vide receipt no. 11 to 16 dated 28.03.2001 exhibited as Ex. PW-1/D, that the 6/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd letter dated 07.04.2001 issued by defendant was received by the plaintiff which was replied vide letter dated 11.04.2001 requesting the defendant to give time for conversion of the buses in May 2001 so that the working of the school is not affected but no reply was received, that vide order dated 13.04.2001 the transport department declared the certificate of the defendant invalid with respect to its competency to take conversion job thus rendering the defendant incompetent to render conversion job, that after receiving the booking amount of Rs. 6 lacs for the conversion of the aforesaid buses, the defendant vide its letter dated 04.09.2001 exhibited as Ex. PW-1/E intimated the plaintiff no.2 that the certificate issued by Indian Institute of Petroleum, Dehradun authorizing them to convert all types of diesel buses into CNG mode was valid and also requested the plaintiff no.2 to send the buses for conversion, that the said letter was received by the plaintiff no.2 on 10.09.2001 and as the deadline for conversion was expiring on 30.09.2001 all the six buses were sent for conversion but the defendant failed to undertake the job on the pretext of heavy rush, that no registration/ booking form for the three buses in dispute bearing no. DL 1PA 1153, DL 1PA 1863 and DL 1PA 1864 were supplied by the defendant and only three forms were issued after persistent request, that after filling the form the three buses bearing no. DL 1PA 2653, DL 1PA 2663 and DL 1PA 5039 were taken to the workshop of the defendant for conversion but the defendants were reluctant to take the same for conversion on the pretext of heavy rush and non-availability of parking facility for the buses/ vehicles, that the conversion job of the bus bearing no. DL 1PA 2653 could be completed belatedly on 24.06.2002 after which bus bearing no. DL 1PA 2663 and DL 1PA 5039 7/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd were sent for conversion which was completed only on 03.04.2003 and 02.04.2003 respectively as is clear from the bills/ invoices dated 03.04.2003 and 02.04.2003 issued by the defendant in the above-
mentioned two cases, that there was no financial constrained with the plaintiff no. 2 and the payments were made timely, that thereafter the plaintiff no.2 sent other three buses to the defendant for conversion on the CNG mode but the defendant failed to carry out the said job on one pretext or another which constrained the plaintiff no.2 to get the work done from some other agency, that the plaintiff no.2 vide letter dated 22.07.2003 requested the defendant no.1 to refund the amount of Rs. 3 lacs alongwith interest @ 18 % per annum but the defendant did not return the same despite receipt of the letter and that the plaintiff no.2 was constrained to get a legal notice issued to the defendant demanding the payment of Rs. 3 lacs alongwith interest @ 18 % per annum despite service of which the defendant did not pay the amount. It is further deposed that the cause of action arose in favour of the plaintiff and against the defendant when the plaintiff booked six buses for conversion from diesel to CNG and received total amount of Rs. 6 lacs @ Rs. 1 lac per bus as an advance, that it further arose when the defendant converted the bus bearing no. DL 1PA 2653 and accepted amount of Rs. 3,32,903/- on 24.06.2002, that it further arose when the job of two buses bearing no. DL IPA 2663 and DL 1PA 5039 was carried out on 03.04.2003 and 02.04.2003 and completed on 03.04.2003 and on 02.04.2003, that it further arose when the defendant declined to undertake the conversion of three other buses and plaintiff no.2 demanded the payment of Rs. 3 lacs from the defendant and that it lastly arose when defendant failed to make the payment despite 8/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd receiving of legal notice dated 01.10.2004.
PW-1 affirmed during his cross examination that it is correct that plaintiff no.2 is a legal entity in the absence of plaintiff no.1 society and that it is correct that he is an employee of plaintiff no.2 and by virtue of this employment he is entitled to represent the society as well. Perusal of the plaint and the documents shows that the plaintiff no.2 through its Principal cum Manager Sh. Vinay Kumar is a signatory to the plaint, verification clause and has also filed an affidavit bearing the signatures of said Vinay Kumar. It is further apparent from the written statement and the documents filed by the defendant alongwith the written statement that the defendant had dealt with the plaintiff no.2 directly through Sh. Vinay Kumar who has filed the present suit which indicates that defendant recognized the authority of plaintiff no.2 to enter into the present transaction. Furthermore, the defendant has got it affirmed by PW-1 that plaintiff no.2 is the legal entity in the absence of plaintiff no.1 society which shows that the defendant admits that plaintiff no.2 is a distinct legal entity with whom the defendant had carried out the present transaction. It shows that the defendant can not be permitted to challenge the authority of plaintiff no.2 to file the present suit for want of any technical requirement on the part of plaintiff no.1 society regarding its authority to institute the present suit as the plaintiff no.2 is itself authorized to file the present suit which has been duly filed by the then Principal Cum Manager Sh. Vinay Kumar through whom the defendant dealt during the course of the present transaction. Furthermore, the defendant has not challenged the fact that Sh. Vinay Kumar was not the Principal Cum Manager at the relevant time as no suggestion to that effect has been put to the plaintiff's witnesses. It thus emerges from 9/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd the aforediscussed observation that it can not be said that the suit has not been filed by the duly authorized person. So, the issue no.3 that the suit has been filed by duly authorized person is decided in favour of the plaintiff and against the defendants.
Perusal of the cross examination of the plaintiff's witnesses further reveals that the witnesses have firmly denied that the conversion of the buses bearing no. 2663 and 5039 was done on 02.08.2002 and 04.09.2002, that delay in payment against cost of conversion caused delay in delivery of buses which were finally delivered on 03.04.2003 and 02.04.2003, that the buses bearing no. 1153, 1863 and 1864 were sent by the plaintiffs after 03.04.2003, that the bookings sum was tendered by way of earnest money, that the plaintiffs voluntarily opted not to send the buses to the defendant and further got them converted on their own by some other agencies, that the defendant has rightly refused to refund the earnest money and that the deliberate refusal of the plaintiffs to send the buses for conversion caused the defendant to import the necessary kit which caused the defendant to suffer heavy losses.
From the aforesaid firm denials it is clear that the defendant has failed to impeach credit of the plaintiff's version which has been affirmed by the plaintiffs' witnesses. It is further affirmed by the PW-1 that it was agreed upon by the defendant that the money paid in advance shall be adjusted in the final invoice which is in consonance with the invoices/ bills of the three buses converted by the defendant wherein the amount of Rs. 1 lac has been adjusted indicating that the advance amount of Rs. 1 lac was to be adjusted in the final bill. Perusal of the receipts Ex. PW-1/C which have been admitted by the defendant 10/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd shows that it comprises of three conditions i.e firstly the exact date of conversion was to be intimated to the plaintiff, secondly the booking amount is non-refundable, thirdly there will be no preponement and postponement of the date intimated for conversion. It is also clear that the said receipts are unilateral documents bearing the signatures of only the defendant and not that of the plaintiffs. The deposition of the plaintiffs' witnesses that the defendant's letter dated 07.04.2001 was received by the plaintiff and was replied vide letter dated 11.04.2001 requesting the defendant to give time for conversion of the buses in May 2001 so that the working of the school is not affected but no reply was received and that vide order dated 13.04.2001 the transport department declared the certificate of the defendant invalid with respect to its competency to take conversion job thus rendering the defendant incompetent to render conversion job has gone unrebutted amounting to admission of the same by the defendant which shows that the performance of the entire contract was delayed due to invalidation of defendant's certificate which tantamounts to the frustration of the contract. Furthermore, the fact that the defendant carried out the conversion in respect of the three buses beyond the time prescribed by it in the said letters and the aforesaid unrebutted testimony of plaintiff's witnesses show that the defendant himself did not adhere to the time schedule given by it which implies that the aforesaid terms of the receipts were negotiable otherwise there was no need on the part of the defendant to carry out the conversion after the plaintiffs did not send the vehicles for conversion in terms of letter dated 07.04.2001.
Considering the aforediscussed conduct of the defendant and the fact that the receipts are unilateral document it can not be said that the 11/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd said receipts are valid binding contract as to entitle the defendant to forfeit the booking sum. So, the issue no. 5 that whether the booking receipts are valid binding contract as to entitle the defendant to forfeit the booking sum is decided in favour of the plaintiff and against the defendant.
Furthermore, the deposition of the plaintiffs' witnesses that vide order dated 13.04.2001 the transport department declared the certificate of the defendant invalid with respect to its competency to take conversion job thus rendering the defendant incompetent to render conversion job, that as the deadline for conversion was expiring on 30.09.2001 all the six buses were sent for conversion, that no registration/ booking form for the three buses bearing no. DL 1PA 1153, DL 1PA 1863 and DL 1PA 1864 were supplied by the defendant and only three forms were issued after persistent request, that after filling the form the three buses bearing no. DL 1PA 2653, DL 1PA 2663 and DL 1PA 5039 were taken to the workshop of the defendant for conversion but the defendants were reluctant to take the same for conversion and non-availability of parking facility for the buses/ vehicles has gone unrebutted amounting to its admission by the defendant which shows that the plaintiffs have sent all the six buses for conversion to the defendant but the defendant failed to convert all the buses to CNG. The dilatory attitude of the defendant is further apparent from the invoices of the buses converted by it from which it is clear that the buses were made roadworthy on 02.04.2003 and 03.04.2003 though the same were received by the defendant on 26.04.2002. The defendant neither led any evidence to show that the plaintiffs delayed the payment of the said buses and thus their delivery was delayed nor 12/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd issued any reminder or notice to the plaintiff for the alleged delay as would have been done by a bonafide defendant. The defendant was not able to impeach the credit of the plaintiff's witnesses who denied that the delay in payment of the conversion cost caused delay in delivery of the said buses. It thus emerges from above that there was certainly a delay on the part of the defendant in performing its part of the transaction and that the plaintiff had sent all the six buses to the defendant including the three buses prior to 03.04.2003 which is corroborated by the firm denial of PW-1 that the buses bearing registration no. DL 1PA 1153, DL 1PA 1863 and DL 1PA 1864 were sent by the plaintiff after 03.04.2003. It further indicates that the plaintiff was constrained to get the CNG Kit installed from some other agency due to delay on the part of the defendant. It is contended by the defendant that the registration certificates of the three buses in dispute indicate that the buses were got converted by the plaintiff much prior to 03.04.2003 which shows that plaintiff never sent the three buses for conversion after 03.04.2003 as the same have already been converted to CNG whereas the plaintiff has averred in the plaint that the aforementioned three buses were sent for conversion after 03.04.2003 which is a material contradiction. However, a meaningful reading of the entire plaint, evidentiary affidavits of the plaintiff's witnesses as well as the afore-discussed appraisal of evidence shows that all the six buses were sent to the defendant for conversion into CNG mode before 03.04.2003 and the defendant delayed in fitting the CNG even in the three buses which were sent to the defendant for the conversion on 26.04.2002 as per defendant's own version prompting the plaintiff to get the remaining three buses converted from another company as 13/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd would have been done by an ordinary person and more so when the buses were being used by the school. So, the aforesaid contention of the defendant does not hold any water. It further shows that the plaintiff was constrained to get the three disputed buses converted to CNG from another agency after 26.04.2002 and this inference is also supported from the fact that all the said three disputed buses were registered after installation of the CNG Kit on the dates falling much after 26.04.2002. It further implies that the rights of the plaintiffs in respect of the aforesaid three buses became adverse to the defendant after 26.04.2002 and that the cause of action to file the present suit arose after 26.04.2002 as prior to that the plaintiff was under legitimate expectation that the defendant would be converting the disputed three buses into CNG. In view of the aforesaid observation, the filing of the suit on 14.03.2005 which is within three years of the arising of cause of action as discussed above and considering the unrebutted testimony of the plaintiffs' witness in respect of the cause of action it is held that the plaintiff has raised a preponderance of probability showing that the suit has been filed within the period of limitation on valid cause of action and that defendant's conduct constrained the plaintiff to get the CNG Kit installed in the said three buses from other agency.
Moreover, even a suggestion that the disputed buses were not sent to the defendant prior to 03.04.2003 despite plaintiff's specific deposition in this respect was not given on behalf of the defendant which is a material omission giving rise to an adverse inference against the defendant who did not lead any evidence despite opportunity to prove his defence. The defendant neither filed any document showing the export of the kit in respect of the disputed buses nor led any 14/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd evidence to substantiate that the plaintiffs' conduct has resulted into any loss. In the facts as discussed above the defendant can not be permitted to take benefits of its own wrongs and to forfeit the advance amount of Rs. 3 lacs in respect of the three buses as the same would amount to unjust enrichment of the defendant at the cost of the plaintiff. Even it for the sake of argument it is admitted that the plaintiff was also at fault in performance of its part of the contract still the afore- established fact that the defendant was at fault can not be overlooked which dis-entitles the defendant from forfeiting the amount of Rs. 3 lacs. It thus emerges from aforesaid discussion and record that the defendant had taken a sum of Rs. 3 lacs for conversion of disputed three buses to CNG but the defendant delayed in conversion of the buses which prompted the plaintiff to get the disputed buses converted to CNG from some other agencies and that the defendant has forfeited the aforesaid amount of Rs. 3 lacs without any basis. Furthermore, deposition of the plaintiffs' witnesses that the plaintiff no.2 vide letter dated 22.07.2003 requested the defendant no.1 to refund the amount of Rs. 3 lacs alongwith interest @ 18 % per annum but the defendant did not return the same despite receipt of the letter and that the plaintiff no.2 was constrained to get legal notice issued demanding the payment of Rs. 3 lacs alongwith interest @ 18 % per annum despite service of which the defendant did not pay the amount has gone unrebutted as no suggestion negating the same was put to the plaintiff's witnesses amounting to its admission on behalf of defendant. It shows that the defendant did not refund the aforesaid amount of Rs. 3 lacs despite service of aforesaid notices which in turn indicates that the plaintiff has a valid cause of action to sue the defendant for 15/16 Delhi Public School Society Vs M/s Nugas Technologies Pvt Ltd recovery of the aforesaid amount of Rs. 3 lacs which has been illegally forfeited by the defendant.
The plaintiff is thus entitled to recover the suit amount of Rs. 3 lacs from the defendant. Furthermore, as the transaction is monetary one and the deposition of the plaintiff's witnesses regarding the claim of interest has not been specifically rebutted by the defendant, the plaintiff no.2 is also entitled for pendentelite and future interest @ 9 % per annum on the suit amount of Rs. 3 lacs till its realization as the rate of interest claimed by the plaintiffs seems unreasonable to this Court.
In view of the aforesaid discussion, it is held that the plaintiffs have successfully raised a preponderance of probability showing that plaintiff no.2 is entitled to the decree of Rs. 3 Lacs alongwith pendentelite and future interest @ 9% per annum Thus, issue no.1, 2 and 4 are decided in favour of the plaintiffs and against the defendant.
Issue No.6 Relief In view of the findings on the aforesaid issues, suit of the plaintiffs is decreed whereby plaintiff no.2 is entitled for sum of Rs. 3,00,000/- (Three Lacs) alongwith pendentelite and future interest @ 9% per annum.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court (VIPLAV DABAS)
today i.e on 29.01.2014 CJ-11/CENTRAL/DELHI
29.01.2014
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