Delhi District Court
Pes Installations Pvt. Ltd vs Somya Constructions (P) Ltd on 3 December, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE-05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
Civ DJ No. 610546/16
CNR No. DLWT01-001998-2015
In the matter of :
PES Installations Pvt. Ltd.
Through its Director
Mr. Gaurav Chadha
13th K. M. Mile Stone,
Opp. Maharaja Agarsen Hospital,
Rohtak Road, Punjabi Bagh,
New Delhi-110056. .......... Plaintiff
Vs.
Somya Constructions (P) Ltd.
Through its Director
Present Office:
# B-33 & 34, Qutab Institutional Area,
New Delhi-110016 .......... Defendant
SUIT FOR RECOVERY OF RS.7,26,000/-
Date of institution : 08.10.2015
Judgement Reserved on : 11.11.2022
Date of Decision : 03.12.2022
PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 1 / 20
JUDGEMENT
1. Plaintiff namely M/s PES Installation Pvt. Ltd. filed the present suit for recovery of Rs.7,26,000/- against the defendant namely Somya Constructions (P) Ltd., alleging following facts:-
"That the defendant was in requirement of Ceiling Mounted Bed Head Panel at defendant's project site B-33, 34 Qutab Institutional Area, New Delhi- 110016 and after discussion and negotiations and in consideration to plaintiff's quotation, defendant made a purchase order no. SCPL/PO/86/2013-14 dated 23.11.2013 for a total amount of Rs.18,20,000/-. It is further averred that over a period of time, upon specific instructions written as well as oral, given by defendant to the plaintiff for such Ceiling Mounted Bed Head Panel (hereinafter referred as "goods"), the plaintiff delivered and installed the said indigenous as well as imported products in conformity to the work. All such deliveries and installations were received and verified to the defendant satisfaction and the invoice no. 209 dated 27.03.2014 of Rs.18,20,000/- raised by the plaintiff for the same, which was duly acknowledge by defendant without any protest or demur. The defendant made part payment and after making all the adjustments, the statement of account maintained by PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 2 / 20 the plaintiff in its regular course of business, a sum of Rs.6,00,000/- is due from the defendant towards principal as on 22.04.2014 and carrying an interest @18% p.a. amounting to Rs.1,26,000/- till 21.06.2015, thereby totaling of Rs.7,26,000/- is payable by the defendant to the plaintiff. In order to persuade to clear the outstanding amounts, the representatives of plaintiff met the defendant officials on various occasions, however, the efforts of plaintiff representatives did not bear fruit and defendant evaded payment of the outstanding amount, therefore, plaintiff issues a legal notice through its counsel vide notice dated 06.04.2015 for calling upon the defendant to make the payment of Rs.6,00,000/- and interest @18% p.a. but of no avail. Hence, the present suit has been filed seeking following reliefs:-
a) Pass a decree for recovery of Rs.6,00,000/-
towards the outstanding amount, in favour of the plaintiff and against the defendants.
b) Pass a decree of Rs.1,26,000/- towards the interest on outstanding amount till the filing of suit, in favour of plaintiff and against the defendant;
c) Award pendentelite and future interest at the rate of 18% per annum, in favour of plaintiff and against the defendant; from the date of institution of present suit till realization of the decreetal amount;
PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 3 / 20d) Allow cost of the present suit in favour of the plaintiff and against the defendant;
e) Pass any other or further order(s) or directions(s), which this Court deem fit in the interest of justice."
2. Written statement with counter claim filed on behalf of defendant. The defendant in the written statement took the preliminary objection that the suit of the plaintiff is without cause of action and an abuse to the process of law and the plaintiff has suppressed the material facts from this Courts. It is stated that in the correspondence made by the defendant it was clearly stated that the delay in delivery of goods not as per the time schedule, on part of plaintiff and has caused irreparable loss and damages to the defendant and there was neither satisfactory delivery nor do the goods conformed to the quality and specifications. As such the answering defendant replied to the legal notice demanded damages to the tune of Rs.10,00,000/- from the plaintiff. It is further stated that the plaintiff has caused a loss of more than Rs.10 lacs to the defendant besides loss to its reputation because of delay in delivery and failure to conform the standard in quality. As a result of this the OT's of Hospital Rockland could not be commissioned as per the schedule and entailing loss to answering defendant for which a counter claim is being preferred by the answering defendant. It is further stated that the legal notice was highly misconceived and was appropriately replied to vide reply dated 22.07.2013 on behalf of defendant. It is stated that rather the plaintiff who has been evading or neglecting the defendant and not paying the damages as rightfully demanded by the answering defendant and the suit PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 4 / 20 of the plaintiff is devoid of cause of action and is liable to be rejected under Order VII Rule 11 CPC.
3. Plaintiff filed replication to the WS of defendant wherein contents of plaint were reiterated and version of defendant was denied. It is stated that the plaintiff had delivered all the material within time frame and completed the installation work according to the instructions of defendant.
4. After completion of pleadings, following issues were settled on 05.12.2017:-
(i) Whether the plaintiff is entitled for a decree for a sum of Rs.6,00,000/- as prayed for?OPP
(ii) Whether the plaintiff is entitled for interest on the said amount, if yes, at what rate and for what period?OPP (Note:- Aforesaid issue no.1 to 2 are subject matter of this judgement and the following issues no.3 is subject matter of counter claim's judgment which is passed separately)
(iii) Whether the defendant is entitled for a decree for a sum of Rs.10 lacs as damages as prayed for?OPD
(iv) Relief.
5. Plaintiff examined Sh. Gaurav Chadha, Director of plaintiff company as PW1 and tendered his evidence by way of affidavit as Ex.PW-1/1 in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 5 / 20Exhibits Nature of documents Ex. PW1/A True copy of certificate of incorporation Ex PW1/B Certified true copy of Board Resolution Ex PW1/C Ledger account of outstanding against defendant Ex PW1/D Office records of invoice Ex PW1/E Copy of purchase order Ex PW1/F Internet emails printout Ex PW1/G Legal notice Ex PW1/H Postal receipts Ex PW1/I Affidavit under Section 65B of Indian Evidence Act
During cross-examination following documents were put to the PW1 Ex PW1/D1, Ex Emails PW1/D2 and Mark X
6. After examining said witness, plaintiff closed his evidence on 11.02.2020 and the matter was fixed for defendant's evidence.
7. In his defence, defendant examined its authorised representative Sh. Prabhat Kumar Srivastava as DW1 and tendered his evidence by way of affidavit as Ex.DW-1/A in which he reiterated the contents of WS which are not repeated here for the sake of brevity. DW-1 relied upon following documents:-
Exhibits Nature of documents Ex DW1/1 Copy of the Board Resolution dated 30.08.2021
Ex DW1/2 (colly) Three emails. The same is de-exhibited as earlier marked as Ex PW1/D1, Mark X and Ex PW1/D2 PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 6 / 20 Ex DW1/3 Reply to legal notice dated 22.07.2015 Ex DW1/4 Postal receipt Ex DW1/5 Certificate Under Section 65 B of Indian Evidence Act
8. AR of the defendant has closed defendant's evidence on 12.09.2022 and matter was fixed for final arguments.
9. Final arguments were heard on behalf of both the parties.
ARGUMENTS
10. Ld. counsel for plaintiff has relied upon the contents of the plaint and also argued that the defendant has placed the purchase order on the plaintiff. In fulfillment of the purchase order, the plaintiff has delivered the goods to the defendant and a final invoice dated 27.03.2014 was raised by the plaintiff towards the defendant and receiving of the same is not denied by the defendant. The defendant has never objected to the said invoice. The outstanding payment of the plaintiff towards the defendant has been specifically shown in the ledger accounts of the plaintiff which were maintained by the plaintiff in the ordinary course of business. The payments to the tune of Rs.8,05,000/- were made by the defendant as part payment and in the ledger account of the plaintiff, the closing balance remains is of Rs.6 lacs and the same is due of the plaintiff from the defendant towards principal and the same has not been specifically denied by the defendant. The part payments of Rs.8,05,000/- by the defendant corroborates the fact that the goods supplied by plaintiff were neither defective nor sub-standard. The plaintiff has sent a valid legal notice PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 7 / 20 dated 06.04.2015 to the defendant but defendant has failed to reply the same. It is also submitted that the privity of contract was only between the plaintiff and the defendant and the special circumstances of Rockland Hospital were never brought to the knowledge of the plaintiff. Thus, there is no privity of contract between the plaintiff and the Rockland Hospital. Even the email dated 05.02.2014 relied by the defendant mentions about ICU panel for Rockland Hospital and not for OT's (Operation Theater) i.e. nature of goods in purchase order and emails are different.
Per contra, Ld. counsel for defendant has relied upon the contents of his written statement and argues that as per the purchase order dated 23.11.2013, time is the essence of contract between the parties as in Appendix-I, the mode of delivery is given with specific period of time from the date of purchase order. The defendant was always wiling to pay the amount and 20% of the advance payment has been made by the defendant on 25.11.2013 i.e. within two days of the purchase order and the defendant was wiling to fulfill his part of contract subject to timely delivery/ supply of goods by the plaintiff. It is also submitted that there is neither delivery nor installation of the products as per the satisfaction of the defendant and the defendant has through emails drawn attention of the plaintiff for the shortcomings as to late delivery and incomplete installation on the part of the plaintiff. It is also submitted that there was no acknowledgement on record of the bills as claimed by the plaintiff. Lastly, it is submitted that the plaintiff has not specifically denied the commission of Rockland Hospital, thus, it amount to admission and the communication on behalf of Rockland Hospital being relevant is also admissible in the present suit.
PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 8 / 2011. Ld. counsel for defendant has relied upon following judgement:
(i) Andard Mount (London) Ltd. Vs Curwel (India) Ltd., MANU/DE/0460/1983.
(ii) Hind Construction Contractors by its sole proprietor Bhikamchand Mulchand Jain (Dea) by LRs Vs. State of Maharashtra, MANU/SC/0031/1979.
12. It is relevant here, before appreciation of evidence and deciding the issues, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 9 / 20 proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
13. In subsequent paragraphs, this Court will be deciding the issues as settled in the present suit.
ISSUE - WISE FINDINGS ARE AS UNDER :-
ISSUES No. 1(i) Whether the plaintiff is entitled for a decree for a sum of Rs.6,00,000/- as prayed for?OPP
14. The onus to prove this issue is upon the plaintiff.
15. It is necessary to examine whether in compliance of purchase order dated 23.11.2013 i.e. Ex PW1/E, the plaintiff had supplied the goods as per the terms and conditions of the purchase order or not, then it has also to be seen in the light of defence that whether the goods were sub standard as well as defective and provided /delivered after the fixed period of time.
16. As per the plaint, in compliance of purchase order no. SCPL/PO/86/2013-14 dated 23.11.2013, the plaintiff over a period of PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 10 / 20 time, upon specific instructions given by defendant has delivered and installed the products in conformity to the work and all such deliveries, installations were received and verified to the satisfaction of defendant. In order to discharge the onus, the plaintiff has relied upon the testimony of Sh. Gaurav Chadha, Director of M/s PES Installation Pvt. Ltd. examined as PW1 and in his testimony he supported the contents of the plaint.
17. The plaintiff has relied upon purchase order dated 23.11.2013 Ex PW1/E and on careful perusal of Ex PW1/E, it is evident that products worth Rs.18,20,000/- were placed by Somya Construction (P) Ltd. i.e. the defendant from the plaintiff. In support of his claim, the plaintiff has also relied on final invoice dated 27.03.2014 Ex PW1/D whereby a total amount of Rs.18,20,000/- was shown due from the defendants by the plaintiff. It is also relevant to mention here that there is no objection, complaint, grievance, protest or correspondence has been brought on record by the defendant against the demand made in invoice Ex PW1/D. To further substantiate its cause, the plaintiff has produced on record Ex PW1/C i.e. ledger account dated 01.04.2013 to 21.08.2015 in which entry dated 22.04.2014 a payment of Rs.8,05,000/- is made and the payment is claimed to be a part payment from the defendant to the plaintiff and after a discount of Rs.37,000/- the total amount left for payment from the defendant towards plaintiff is Rs.6 lacs. It is also stated that the ledger is kept by the plaintiff in its ordinary course of business. It is also relevant to mention here that the said payment of Rs.8,05,000/- is not specifically denied in the written statement by the defendant. It is again important to mention here that in cross-examination of PW1 no challenge has been PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 11 / 20 made to the said ledger i.e. Ex PW1/C or to the invoice i.e. Ex PW1/D.
18. In order to rebut the submission and evidence of the parties, Ld. Counsel for defendant submits that time was essence of the contract and neither delivery nor installation of the products as per the satisfaction of the defendant and due to that late delivery and defects in the goods the defendant has suffered damages from not commissioned as per schedule to the Rockland Hospital, as the goods were purchased for the Rockland Hospital.
19. In support of his submissions, the defendant has produced Sh. Prabhat Kumar Srivastava as DW1 and relied on Ex PW1/D1, Mark X and Ex PW1/D2. The document Ex PW1/D1, the email dated 05.02.2014 is written by [email protected] to [email protected]. Similarly, document Ex PW1/D2, the email dated 17.05.2014 was written by [email protected] to [email protected] and [email protected] and before relying on this documents in the opinion of this Court it is necessary for the defendant to prove that there is privity of contract between plaintiff, defendant and the Rockland Hospital.
20. On careful perusal of purchase order i.e. Ex PW1/E dated 23.11.2013 there is no mention of the Rockland hospital, thus, purchase order i.e. Ex PW1/E was only a bi-party agreement between the plaintiff and defendant. Even, there is no iota of evidence on record to show that the defendant has brought into the knowledge of the plaintiff the special PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 12 / 20 fact with regard to the fact that the products were purchased by the defendant on behalf of the Rockland Hospital. On record there is no evidence that the defendant has given any notice of the said special fact to the plaintiff and thus, the defendant has failed to prove this special fact.
As per Section 106 of Evidence Act, as when any special fact is pleaded the onus to prove that special fact is on person who pleaded that fact. The provision of Section 106 of Evidence Act is reproduced as under:-
106.Burden of proving fact especially within knowledge - When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
21. Thus, the onus to prove special fact with regard to tri-party agreement is on defendant and the defendant has failed to produce any document or examine any witness to the same fact. Even, the defendant has not took the pain to examine any person from the Rockland Hospital.
22. Ld. counsel for the defendant has also submitted that the time was the essence of contract and as the plaintiff has not supplied the goods within the specific period of time, he has committed breached the terms of contracts and he relied upon Andard Mount (London) Ltd. Vs Curwel (India) Ltd., MANU/DE/0460/1983 and Hind Construction Contractors by its sole proprietor Bhikamchand Mulchand Jain (Dea) by LRs Vs. State of Maharashtra, MANU/SC/0031/1979. The counsel for defendant has relied upon following paras of the aforesaid judgements: Andard Mount (London) Ltd. v. Curewel (India) Ltd., PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 13 / 20 1983 SCC OnLine Del 236 : AIR 1985 Del 45 : 1983 Arb LR 304 "...12. Section 11 of the Sale of Goods Act (for short the Act) which corresponds to Section 10 of the English Sale of Goods Act, 1979, provides that:
"Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract."
13. As a general rule, in ordinary commercial contracts for the sale of goods, stipulations as to time of delivery are considered to be of the essence of the contract even though they are not expressly stated in the words of the contract. If, therefore, the seller fails to deliver the goods within the time limited for delivery there is a breach of condition and the buyer is entitled to reject the goods and treat the contract as repudiated. (See Benjamin's Sale of Goods, Second Edition, Para 603). As was observed by Lord Cairns L C. in Bowes v. Shand, (1877) 2 A.C. 455 that:
"Merchants are not in the habit of placing upon their contracts stipulations to which they do not attach some value and importance."
14. The reason for the general rule is obvious. A mercantile contract is not always an isolated transaction but a link in a chain of transactions. In the instant case too, it would appear from the evidence of Mr. Goule that they had entered into contracts with other parties for supply of the commodity in question and there appears to be no reason to disbelieve him in this respect. Moreover, there can always be a risk of sudden and unexpected fluctuation in the price of a commodity. Therefore, a prudent and a wary purchaser would like that the goods are supplied to him by the vendor within the time which he considers to be safe. Prima facie, therefore, the parties must be deemed to have intended that the time should be of the essence of the contract in the instant case. See also Mahabir Prasad Rungta v. Durga Datt, AIR 1961 SC 990...."
xxx xxx xxx
18. That apart there is yet another well established principle of law. It is that where time is not originally of the essence of PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 14 / 20 the contract or where a stipulation making time of the essence has been waived, time may be made of the essence, where there is unreasonable delay by a notice from the party who is not in default fixing a reasonable time for the performance and stating that in the event of non-
performance within the time so fixed he intends to keep the contract as broken. The time so fixed must be reasonable having regard to the state of things at the time when the notice is given and to all the circumstances of the case. Such a notice is binding on the party giving it as on the party receiving it. (See Halsbury's Laws of England, 4th Ed., Vol. 9, Para 485).
24. The legal proposition which would emerge from these authorities manifestly is that where in a contract of sale of goods the time was not originally of the essence of the contract or it being so ceased to be of essence on account of waiver on the part of the innocent party and the period of postponement is not specified, the contract has to be performed within a reasonable time. In such a situation the buyer can give a reasonable notice to the seller requiring that the goods be delivered within a certain time and if he so specifies a new time limit delivery at the time thus specified becomes the essence of the contract. Pertinently reliance has been placed on Hartley v. Hymans (1920 (3) KB 475) (supra) by counsel for both the parties and the only contention raised by the defendant's counsel is that notice dated 25th Nov. 1974 (Ex. P8) which was given by the plaintiff's solicitors to the defendant is not valid and legally binding on the defendant. I shall, however, deal with this aspect of the matter a little later under issue No. 8.
25. To sum up, therefore, I hold that time was of the essence of the contract, that at any rate the contract had to be performed within reasonable time and that it was open to the plaintiff to make the time of the essence of the contract on account of unnecessary delay on the part of the defendant and fix a time limit for performance of the contract and make it of the essence of the contract...."
Hind Construction Contractors v. State of Maharashtra, (1979) 2 SCC 70 "...7............"1179. Where time is of the essence of the contract.--The expression time is of the essence means that a breach of the condition as to the time for performance will entitle the innocent party to consider the breach as a PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 15 / 20 repudiation of the contract. Exceptionally, the completion of the work by a specified date may be a condition precedent to the contractor's right to claim payment. The parties may expressly provide that time is of the essence of the contract and where there is power to determine the contract on a failure to complete by the specified date, the stipulation as to time will be fundamental. Other provisions of the contract may, on the construction of the contract, exclude an inference that the completion of the works by a particular date is fundamental: time is not of the essence where a sum is payable for each week that the work remains incomplete after the date fixed, nor where the parties contemplate a postponement of completion.
Where time has not been made of the essence of the contract or, by reason of waiver, the time fixed has ceased to be applicable, the employer may by notice fix a reasonable time for the completion of the work and dismiss the contractor on a failure to complete by the date so fixed."
8. It will be clear from the aforesaid statement of law that even where the parties have expressly provided that time is of the essence of the contract such a stipulation will have to be read along with other provisions of the contract and such other provisions may, on construction of the contract, exclude the inference that the completion of the work by a particular date was intended to be fundamental; for instance, if the contract were to include clauses providing for extension of time in certain contingencies or for payment of fine or penalty for every day or week the work undertaken remains unfinished on the expiry of the time provided in the contract such clauses would be construed as rendering ineffective the express provision relating to the time being of the essence of contract. The emphasised portion of the aforesaid statement of law is based on Lamprell v. Billericay Union [(1849) 3 Exch 283, 308] , Webb v. Hughes [(1870) LR 10 Eq 281] and Charles Rickards Ltd. v. Oppenheim [(1950) 1 KB 616..."
23. At this stage, it is also profitable to rely upon the observations made by the Hon'ble Supreme Court of India in Welspun Specialty PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 16 / 20 Solutions Ltd. v. ONGC, (2022) 2 SCC 382 : 2021 SCC OnLine SC 1053, which are reproduced as under:-
"...35. It is now settled that "whether time is of the essence in a contract", has to be culled out from the reading of the entire contract as well as the surrounding circumstances. Merely having an explicit clause may not be sufficient to make time the essence of the contract. As the contract was spread over a long tenure, the intention of the parties to provide for extensions surely reinforces the fact that timely performance was necessary. The fact that such extensions were granted indicates ONGC's effort to uphold the integrity of the contract instead of repudiating the same...."
24. Now, reverting back to the facts of the case as per Ex PW1/D1 email dated 05.02.2014 as relied by the defendant, there is specific mention of the fact that via that email a demand for the delivery of material was made and via Ex PW1/D2 email dated 17.05.2014 a complaint was made with regard to the installation, on the other hand, invoice raised by the plaintiff is Ex PW1/D dated 27.03.2014 and the part payment was made by the defendant on 22.04.2014 shown in ledger i.e. Ex PW1/C. Thus, the corollary of the aforesaid facts establishes that the defendant has permitted by implied conduct that the intention of the defendant instead of repudiating the contract is to provide for extensions of time and instead of objecting to the delivery and installation the defendant was claiming delivery and installations from the plaintiff and even made a part payment to it and it is also relevant to mention here that the defendant has not given any notice to the plaintiff for the termination of contract while on the other hand, continued to receive the goods from the plaintiff. The email dated Ex PW1/D2 dated 17.05.2014 seems to be PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 17 / 20 an after thought i.e. after the date of invoice Ex PW1/D dated 27.03.2014, thus, in the opinion of the Court in present case, time is not the essence of contract. The case laws relied by the defendant is not applicable to the facts and circumstances of this case.
25. On the basis of aforesaid discussion, this Court is of the view that in compliance of the purchase order the plaintiff has duly supplied the goods and the same were received by the defendant there has not been any objection on the part of the defendant with regard to the delay or the quality of the goods till the date of raising of invoice by the plaintiff. Further ledger accounts of the plaintiff, fully establishes the alleged pending amount. After raising final invoice a part payment of Rs.8.05,000/- was also made by the defendant to the plaintiff, this conduct of the defendant also establishes that there was acceptance of the goods by the defendant as there is nothing on record to show that the payment was made under protest or the goods were defective. The Rockland Hospital being a third party to the plaintiff, thus, the plaintiff is not liable for any loss to the defendant if any be happened from the not commissioning of Rockland Hospital. Further, the testimony of the plaintiff witness i.e. PW1 remains unrebutted and the other documents i.e. Ex DW1/3 i.e. reply to legal notice is not of much help to the defendant as there has not been brought on record by the defendant that before receiving the goods they have brought any objection in the knowledge of the plaintiff or they have repudiated the contract.
26. In view of findings given in Issue no.1 as aforesaid, the plaintiff has discharged the onus of proof on this issue. Accordingly, this issue is PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 18 / 20 decided in affirmative i.e. in favour of plaintiff and against the defendant.
ISSUE No.2
(ii) Whether the plaintiff is entitled for interest on the said amount, if yes, at what rate and for what period?OPP
27. With regard to the issue of interest is concerned, the onus to prove this issue is upon the plaintiff. No evidence has been led by either of the parties regarding the amount of interest. Considering the normal rate of interest, plaintiff is entitled to the interest @6% per annum from the date of filing of the suit till the date of realization.
28. Thus, issue no. 2 is decided accordingly.
ISSUE No.3 RELIEF
29. The object of the judicial process is to find the truth from the pleadings, documents and the evidence led before the Court. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012) 5 SCC 370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. In view of above discussion and findings on issues no. (i) & (ii), the suit of the plaintiff is hereby partly decreed and a decree for recovery of Rs.6 lacs alongwith future and pendentelite interest @6% p.a. from the date of institution of present suit till realization of the decreetal amount is passed in favour of the plaintiff and against the defendant.
PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 19 / 2030. Cost of the suit is also awarded in favour of the plaintiff.
31. Decree sheet be prepared accordingly subject to payment of deficient court fees.
32. File be consigned to the record room after due compliance.
SYED Digitally signed by SYED
ZISHAN ALI WARSI
ZISHAN ALI Date: 2022.12.03
Announced in the open Court WARSI 14:58:41 +0530
[SYED ZISHAN ALI WARSI]
Dated : 03.12.2022 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
PES Installation Pvt. Ltd. Vs Somya Constructions (P) Ltd. Page No. 20 / 20