Delhi District Court
M/S. Galaxi Constructions vs M/S. The Aftab Education & Social ... on 20 November, 2014
CS No. 571/09
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-Central-9, DELHI.
Civil Suit No.: 571/09.
Unique Case ID No.02401C0494592009.
M/s. Galaxi Constructions,
Through its proprietor Sh. Sanjay Garg,
UG-7, A-212-C, Trupati Plaza, Vika Marg, Delhi-92.
At present:-
D-332, Vivek Vihar,
Delhi-110092. .....Plaintiff
Versus
01. M/s. The Aftab Education & Social Welfare Society,
Through its Secretary
Sh. S. L. Dhawan,
8A/125, W.E.A. Karol Bagh,
New Delhi-110005.
02. M/s. The Aftab Education & Social Welfare Society,
Through its Vice Chairman
Sh. Deinesh Jain
C/o. M/s. Flex Industries Ltd,
A-108, Sector-4,
Noida U.P. ...Defendants
Date of institution of the suit : 10.09.2009.
Reserved for judgment on : 20.11.2014.
Date of pronouncement of judgment : 20.11.2014.
SUIT FOR RECOVERY OF RS. 6,26,243.55/- (RUPEES LACS TWENTY
SIX THOUSAND TWO HUNDRED FOURTY THREE AND PAISA FIFTY
FIVE ONLY).
M/s. Galaxi Constructions Vs.
M/s. The Aftab Education & Social Welfare Society & Anr. Page No. 1
CS No. 571/09
JUDGMENT
01. This suit is for recovery of Rs. 6,26,243.55/- filed by the plaintiff against the defendant.
02. Brief facts of the case are:-
(a) The defendant is an education and welfare society. Plaintiff and defendant had executed an agreement dated 25.04.2005 which were legally bound to follow the terms of the letter dated 31.01.2005 and subsequent agreement dated 25.04.2005 to carry out the civil construction work for the project site of Delhi public School at Hapur, District- Ghaziabad, UP.
(b) However due to some unavoidable circumstance and misunderstanding between the parties the work of construction could not complete as per agreement and finally both parties settled the matter for work done by the plaintiff. Accordingly, the plaintiff had raised its final bill for work done of civil construction for a sum of Rs.
1,73,78921.13/- which was after checking and accordingly passing by the Architect, accounts and other related department of the defendants and finally mutually agreed to accept the gross final bill for a sum of Rs.1,43,30,502.09/- for work done by the plaintiff. Defendants were aware that the plaintiff had deposited the sum of Rs.1,43,305/- towards the development Tax as levied by the State Government from 1st May, 2005. Defendants were duly intimated for the same but despite of all, defendants had yet not reimbursed the said amount to the plaintiff.
(c) Plaintiff had sent the several reminders in this regard to the defendants for the due payment of the said sum and thus the defendants are illegally withholding the due sum and payable by defendants to the plaintiff.
M/s. Galaxi Constructions Vs. M/s. The Aftab Education & Social Welfare Society & Anr. Page No. 2 CS No. 571/09
(d) Notice dated 18.10.2008 issued through his counsel to call upon the defendants to pay sum of Rs. 6,26,243.55/- to the plaintiff along with stipulated interest @ 18 %.
(e) Plaintiff is also claiming Rs. 3,58,262.55 balance 50% of the retention money, the plaintiff is claiming Rs. 1,43,305.00 towards reimbursement of State Development Tax @ 1% and certified Bill along with interest.
03. Written statement filed by the defendants wherein it is objected that the plaintiff has come to this court after breaching the contract and abandoning the work midway leaving the answering defendant in lurch while the material at site was left in the open. Agreement between the parties is admitted. It is stated that the plaintiff has not completed his part of obligation as per settlement arrived between them, but the defendant performed their part of settlement by paying the legitimate due of the plaintiff. It is stated that defendant was always willing and ready to perform its part of the contract. It is further denied that the agreement entered into between the parties was not executed by the plaintiff. For the reasons the present suit is liable to be dismissed. Rest of the contents of the plaint are also denied.
04. Plaintiff filed replication to the written statement filed by the defendants wherein contents of the written statement are denied and averments made in the plaint are reiterated and affirmed.
05. This court vide order dated 06.08.2013 framed following issues:
1. Whether suit of the plaintiff is liable to be rejected under Order 7 Rule 11 of CPC ? (OPD).
2. Whether plaintiff is guilty of suppression of material facts ? If so, its effect ? (OPD).
3. Whether plaintiff has valued the suit properly for the purpose of court M/s. Galaxi Constructions Vs. M/s. The Aftab Education & Social Welfare Society & Anr. Page No. 3 CS No. 571/09 fees ? (OPP).
4. Whether plaintiff is entitled for decree for recovery of the suit amount as prayed in Prayer (a) ? (OPP).
5. Whether plaintiff is entitled for decree for recovery of the suit amount as prayed in Prayer (b) ? (OPP).
6. Whether plaintiff is entitled for decree for recovery of the suit amount as prayed in Prayer (c) ? (OPP).
7. Whether plaintiff is entitled for pendentelite and future interest on decree amount? If so, at what rate and for what period ? (OPP).
8. Relief.
06. By order dated 09.10.2014 it was observed that despite opportunities plaintiff did not lead any evidence. Therefore, P.E. was closed by order dated 09.10.2014. By order dated 18.10.2014 it was observed that ld.counsel for the defendants submitted that she did not want to lead any D.E. and by separate statement, ld. counsel for the defendants closed D.E.
07. I have gone through the entire records of the case including pleadings of the parties. My issue-wise findings are:-
Issue no. 1 & 2.
01. Whether suit of the plaintiff is liable to be rejected under Order 7 Rule 11 of CPC ? (OPD).
02. Whether plaintiff is guilty of suppression of material facts ? If so, its effect ? (OPD).
08. Onus to prove these issues was upon the defendants. However, defendant has not led any evidence to prove these issues. Since defendant is not able to prove these issues, issues no.1 and 2 are answered against the defendants.
Issues no.3 to 7.
03. Whether plaintiff has valued the suit properly for the purpose of court fees ? (OPP).
04. Whether plaintiff is entitled for decree for recovery of the M/s. Galaxi Constructions Vs. M/s. The Aftab Education & Social Welfare Society & Anr. Page No. 4 CS No. 571/09 suit amount as prayed in Prayer (a) ? (OPP).
05. Whether plaintiff is entitled for decree for recovery of the suit amount as prayed in Prayer (b) ? (OPP).
06. Whether plaintiff is entitled for decree for recovery of the suit amount as prayed in Prayer (c) ? (OPP).
07. Whether plaintiff is entitled for pendentelite and future interest on decree amount? If so, at what rate and for what period ? (OPP).
09. Onus to prove these issues was upon the plaintiff. However, plaintiff has not led any evidence to prove his case. It was categorically stated by defendant that plaintiff has not completed his part of obligation and abandoned the work without any notice and therefore defendant had to complete the remaining uncompleted work from outsourcing at its cost and the claim made out by the plaintiff is not liable to be entertained rather an amount of Rs.22.50 has to be made out by the plaintiff in favour of the defendant. However, plaintiff has not led any evidence to prove its case. Thus, plaintiff has failed to prove these issues. Therefore, these issues are answered against the plaintiff.
Issue No.7.
Relief.
10. In view of the observations made herein-above, the suit of the plaintiff is dismissed. There is no order of costs. Decree sheet be prepared accordingly. File be consigned to Record Room. Announced in the Open Court today on 20.11.2014 (Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 20.11.2014 M/s. Galaxi Constructions Vs. M/s. The Aftab Education & Social Welfare Society & Anr. Page No. 5 CS No. 571/09 CS No.571/09 20.11.2014 Present: None.
Vide my separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 20.11.2014 M/s. Galaxi Constructions Vs. M/s. The Aftab Education & Social Welfare Society & Anr. Page No. 6