Delhi District Court
M/S Narayani Ratan Scaffolding vs . M/S. Interior And Construction ... on 31 March, 2023
M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited
&
M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding
IN THE COURT OF ADDITIONAL DISTRICT JUDGE
02, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
Presiding Judge: Sh. Dinesh Kumar
CS No. 6566/2016
Filing No. 13952/14
CNR No. DLST010007222014
In the matter of
M/s Narayani Ratan Scaffolding
Through it's proprietor
Sh. Kunal Aggarwal
S/o. Sh. Ram Avtar Aggarwal
Having office at: Kh no. 15/17
Gali no.12, Burari Road, Sarup Nagar, Delhi ........Plaintiff
Versus
M/s. Interior and Construction Private Limited
(Through it's Authorized Representative)
At:
Plot no. 372, Near Empire Estate,
M.G. Road, Sultanpur, New Delhi ........Defendant
&
CS No. 5898/2016
Filing No. 23920/2014
CNR No. DLST010003342014
In the matter of
M/s. Interior and Construction Private Limited
Through
Mr. Mangat Singh Aswal
CS DJ No. 6566/2016 &
CS DJ No. 5898/2016
Page 1 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023
M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited
&
M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding
Plot no. 372, Near Metro Pillar No. 11B
Near Empire Estate,
M.G. Road, Sultanpur, New Delhi
.............CounterClaimant
Versus
M/s Narayani Ratan Scaffolding
Through it's proprietor
Sh. Kunal Aggarwal
S/o. Sh. Ram Avtar Aggarwal
Having office at: Kh no. 15/17
Gali no.12, Burari Road, Sarup Nagar, Delhi
............... Defendant
Date of Institution : 03.07.2014
Date of reserving the judgment : 01.03.2023
Date of pronouncement : 31.03.2023
SUIT FOR RECOVERY OF RS.4,02,762// (RUPEES
FOUR LAKHS TWO THOUSAND SEVEN HUNDRED
SIXTY TWO ONLY) WITH INTEREST
PENDENTELITE AND FURTHER INTEREST FROM
THE DATE OF DECREE UPTO THE DATE OF
REALISATION AND COST OF THIS SUIT WITH
INTEREST THEREON
&
COUNTER CLAIM ON BEHALF OF M/S. INTERIOR
AND CONSTRUCTION PVT. LTD.
JUDGMENT
1. Vide this common judgment, I shall decide two suits i.e. CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 2 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding a suit for recovery for Rs.4,02,762/, filed by the plaintiff against the defendant, and a counterclaim filed by the defendant against the plaintiff for recovery of Rs. 1,44,344. The main suit was filed initially against the three defendants. However on 07.08.2014 the defendant No.2 and 3 were deleted from the array of parties. The case of the plaintiff as per the plaint is as under: 1.1. The plaintiff is engaged in the renting business of scaffolding and shuttering material for the last several years in the name and style of M/s. Narayani Ratan Scaffolding.
1.2. The defendant, is a private limited company and is engaged in the business of building and construction.
1.3. In the month of July 2012, the defendant approached the plaintiff and represented that the defendant(s) were constructing a building at Wazirpur Industrial Area, Delhi and asked the plaintiff to supply scaffolding for their project on rental basis. The defendant(s) further assured the plaintiff that prompt CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 3 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding payment shall be made by the defendant(s).
1.4. Believing upon their assurances, the plaintiff supplied the scaffolding at Wazirapur, Delhi on regular basis during the period starting from June, 2012 till December, 2013. However, a balance of Rs.69,462/ is still pending to be paid by the defendant(s) to the plaintiff towards the rent of the scaffolding supplied to the defendant(s). Besides the outstanding payment of rent goods worth Rs. 3 lacs are lying at the site of the defendant(s) and the defendant(s) are responsible for the depreciation of the same.
1.5. The plaintiff had made several requests to the defendant(s) but all in vain. The defendant(s) have avoided the payment of the plaintiff on one pretext or the other. The defendant(s) have neither made the payment due towards the plaintiff nor had returned the goods worth around Rs. 3 lacs lying at their site. Till date an amount of Rs.69,462/ is pending against the defendant(s) to be paid to the plaintiff which the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 4 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding defendant(s) have failed to pay despite several requests made by the plaintiff and the defendant(s) are also liable to pay Rs.3,00,000/ towards the cost of the goods i.e. scaffolding lying at their site. The defendant(s) have to pay sum of Rs.4,02,762/ which included Principal Amount of Rs.3,69,462/ and interest of Rs.33,300/ from December, 2013 till May, 2014 @18% P.A. 1.6. The plaintiff also sent a legal demand notice on 23.01.2014 to the defendant(s) through Courier and the same was duly received by the defendant(s). However, the defendant(s) instead of paying the legitimate due towards the plaintiff sent a false and frivolous reply. The plaintiff is entitled to recover the aforesaid amount of Rs. 4,02,762/ which the defendants have failed to pay despite several requests and legal notice. Hence the present suit has been filed with the following prayer:
1) the defendant(s) may be directed to pay to the plaintiff, a sum of Rs.4,02,762/ with interest @ 18% p.a. pendentelite and future CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 5 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding from the date of filing of the suit till realization.
2) the defendant(s) may be directed to pay to the plaintiff, cost of the suit.
3) any other order(s)/relief as this Hon'ble Court deems fit and proper under the circumstances of this case, in favour of the plaintiff and against the defendant.
2. The defendant has filed written statement alongwith a counterclaim. The case projected by the defendant/ counter claimant is as under : 2.1. The defendant, before availing plaintiff's services of providing the scaffolding, had made the advance payment of Rs.50,000/ through cheque, bearing no. 007983 dated 05.06.2012 as security deposit for the scaffolding provided by the plaintiff. Thereafter, the invoices raised by plaintiff were duly honoured and the payments to the same were duly made by the defendants.
2.2. On 09.08.2013, the work at site was put on hold as the principal owners on whose site the work was carried out by the defendant were arrested in the MCD bribe case. The said fact was duly informed to CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 6 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding the plaintiff. Since the work was suspended, the plaintiff was advised to remove their scaffolding from the site. Defendant's office bearer made various phone calls and also visited the office of the plaintiff and requested to remove the scaffolding but even after the various reminders plaintiff failed to remove the scaffolding from the site.
2.3. The defendant has cleared the bill till July 2013 and paid Rs.27,694/ vide cheque no. 025211 dated 27.09.2011. At the time of making that last payment, the defendant requested the plaintiff to remove the scaffolding lying at the site. Even after various reminders, the plaintiff failed to remove the scaffolding from the site. Due to unprofessional act of plaintiff, the defendant had to remove the scaffolding from the site as the site was vulnerable and the goods lying at the site were under risk.
2.4. The defendant had to spend money on shifting of the scaffolding. Apart from that the defendant was constrained to take a warehouse on rent CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 7 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding to store the scaffolding. The scaffolding were shifted in the month of October, 2013 and till date, the said scaffolding are stored in the premises taken on rent by the defendant.
2.5. The defendant is paying Rs.10,000/ per month as rent since October 2013 for storing of the scaffolding at the site at the warehouse apart from the fact that Rs.2000/ was spent on transportation and Rs.1500/ was spent on labour for loading and unloading of scaffolding.
2.6. The plaintiff, instead of removing his scaffolding and making payment for the expenses incurred by the defendant issued a notice through his lawyer demanding a payment of Rs.69,462/. The said notice was duly replied by the defendant through his counsel, whereby the plaintiff was informed that the plaintiff was liable to pay Rs.53500/ to the defendant for storing and transporting of the scaffolding. Further, after making due adjustment to pending invoices from the security deposit made by the defendant, the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 8 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding plaintiff is liable to refund Rs.30844/. The plaintiff was further advised to make the payment of Rs.84,344/ within 15 days of receiving the reply and remove the scaffolding lying at the premises/warehouse. Even after receiving of the reply, no rejoinder to the said notice was sent. The plaintiff, even after acknowledging his liability, has failed to make payment and remove the scaffolding and has chosen to file the present suit on false, fake and frivolous ground.
2.7. The defendant sent notice dated 09.04.2014 and demanded it's money spent on the transportation, labour and storing of scaffolding and asked the plaintiff to remove the scaffolding within 15 days from the receipt of the notice. Even after plaintiff been served with notice, no reply to the same was ever sent by the plaintiff. Hence, it is prayed that the suit may be dismissed. In the counterclaim, the defendant has also prayed for a money decree of Rs. 1,44,344 / along with interest @ 18 % pendentelite against the plaintiff.
CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 9 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding
3. The plaintiff filed the rejoinder to the written statement of the defendant in which he denied the averments made by the defendant and reiterated the facts stated in the plaint. He also filed the Written Statement to the counterclaim in which he has denied the contentions made by the defendant regarding its claim.
4. On the basis of the pleadings of the parties, vide order dated 30.10.2014, following issues were framed in the main suit :
1.Whether plaintiff is entitled for recovery of Rs.4,02,762/ with interest @ 18% p.a. as prayed for? OPP
2. Relief.
5. Vide order dated 30.10.2014, following issues were framed in the counterclaim:
1.Whether plaintiff is entitled for recovery of Rs.1,44,344/ with interest @ 18% p.a. as prayed for? OPP
2. Relief.
6. The plaintiff has examined himself as PW1 in main suit. He has tendered his evidence by way of affidavit Ex.PW1/1. He has relied upon the following documents :
CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 10 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding
1) The ledger account of the defendant maintained by the plaintiff is exhibited as Ex. PW1/A.
2) The invoices are exhibited as Ex. PW1/B1 to Ex.
PW1/B20
3) The challans issued by the plaintiff are exhibited as Ex. PW1/C1 to C7.
4) The copy of legal notice is exhibited as Ex.
PW1/D.
5) Courier receipt is exhibited as Ex. PW1/E1 to PW1/E5.
7. The witness was duly crossexamined by the Ld. Counsel for defendant. The plaintiff did not examine any other witness. Therefore, PE was closed in the main suit and the matter was fixed for DE.
8. The defendant / counter claimant filed affidavit of witness Mr. Mangat Singh Aswal (AR of the defendant company) in the main suit and in the counterclaim. The affidavit was tendered in evidence in the counterclaim, however the same is not shown to be tendered in evidence in the main suit. Even the documents on which the defendant has CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 11 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding relied upon have been exhibited only in the counterclaim. However, the crossexamination of witness Mr. Mangat Singh Aswal has been recorded in both the matters separately. He has been examined and crossexamined as PW1 in the counter claim while he has been crossexamined as DW1 in the main suit. The PW1, in the counterclaim, has tendered his evidence by way of affidavit Ex. PW1. He has relied upon the following documents :
1) The copy of board resolution dated 26.07.2013 :
Ex. PW1/1.
2) The copy of ledger account of the plaintiff company : Ex. PW1/B.
3) Copy of the transportation receipt for transfer of goods : Ex. PW1/C.
4) Copy of rent receipts : Ex. PW1/D1 to Ex.
PW1/D17.
5) Copy of reply to legal notice : Ex. PW1/E,
6) Postal receipt : Ex. PW1/F.
7) Copy of legal notice dated 09.04.2021 : Ex.
PW1/G. CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 12 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding
8) Postal receipt : Ex. PW1/H.
9. The counterclaimant also examined Mr. Mukesh Kumar, stating to be the Landlord of the Warehouse as PW3. He has tendered his evidence by way of affidavit Ex. PW3/1. He would state that he is the landlord of warehouse situated at Master Mohalla, Tuqlakabad Village, Near MP House, New Delhi. The plaintiff (counter claimant) had taken the warehouse on rent from him to store scaffolding in the month of October 2013 on rent @ Rs. 10,000/ per month and he had issued the rent receipts in this regard. He has relied upon the documents already Ex. PW2/D1 to Ex. DW2/D58.
10. Both the witnesses of the counterclaimant were duly cross examined by Ld. Counsel for the defendant (plaintiff in the main suit).
11. The counterclaimant had also tendered affidavit of Mr. Deenakrushna Pradhan, Account Manager of the defendant / counter claimant as PW2. He tendered his evidence by way of affidavit Ex. PW2/O. He relied upon the documents already Ex. PW1/B, Ex. PW1/C, Ex. PW1/E, Ex. PW1/F & Ex. PW1/G. He also tendered in evidence, the rent receipts which are CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 13 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding Ex.PW2/D1 to Ex. PW2/D58 and photographs of the scaffolding Ex. PW2/1 (Colly). However, the PW2 did not appear for his crossexamination and therefore, the evidence of the counterclaimant was closed vide order dated 28.11.2019.
12. Thereafter, the defendant in the counterclaim (plaintiff in the main suit) was given opportunity to lead evidence. However he did not lead any evidence in the counterclaim and DE was closed vide order dated 18.08.2022. Thereafter, the matter was listed for final arguments.
13. Ld. Counsel for the plaintiff would argue that the plaintiff has proved his case against the defendant. The plaintiff had proved that he had given the scaffolding on rent to the defendant at its request. Even, the defendant has not disputed the said fact. The defendant did not make the payment of the rent amount as agreed. He even did not return the scaffolding items to the plaintiff. The value of the scaffolding items is Rs. 3,00,000/ which are still in the possession of the defendant. The defendant did not make the payment of the rent. It did not return the scaffolding items despite request. It has taken a false defence. It has filed a false counterclaim. It has failed to prove CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 14 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding that it had informed the plaintiff to take the scaffolding back . In any case it was the duty of the defendant to return the scaffolding to the plaintiff. It was not supposed to keep the goods with it. The defendant should have return the goods to the plaintiff rather than storing them at a warehouse. It is possible that the defendant is using the goods / scaffolding for its other sites and therefore, they are not returned. The defendant might have taken the store on rent to store its other items of construction. There is nothing on record to show that the store was taken on rent just to store the scaffolding items. The defendant is liable to pay the rent as claimed by the plaintiff and also to pay the price of the goods lying with it. Hence, it is prayed that the suit may be decreed and the counter claim may be dismissed.
14. Ld. Counsel for the defendant / counterclaimant, on the other hand, would argue that there are no merits in the suit of the plaintiff and it is liable to be dismissed. It is argued that there is nothing on record to show that the goods were worth Rs. 3 Lacs. PW1 in his cross examination has admitted that there was nothing on record to show as to what was the value of CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 15 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding the goods. Further, there was no written agreement between the parties in respect of the rate of rent of the scaffolding. In point no. 4 in the invoice, it is specifically mentioned that on non payment of 2 bills, the firm shall have right to take the goods back. However, despite non payment of the rent, the plaintiff did not take the goods back. Ld. Counsel would argue that the invoice between the parties was a contract in writing and the plaintiff was bound by the terms mentioned in the contract / invoice. It is specifically mentioned in the invoice that on non payment of two bills, the plaintiff shall have a right to take the goods back. However, the plaintiff did not take the goods back despite pendency of more than 2 bills. Therefore, the defendant is not liable to make any payment to the plaintiff as the plaintiff had not taken his goods back. It was the defendant who had to remove the scaffolding at its expenses as that plaintiff had not taken the goods back despite request. The defendant had informed the plaintiff that the scaffolding were not required as the work had stopped on the site because the owner of the site was sent to prison in some legal matter. However, despite the said information the plaintiff did not collect its goods.
CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 16 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding Therefore, the defendant had to store them in a warehouse which was taken by it on rent. The defendant is making payment of the rent to store the goods belonging to the plaintiff. Therefore, the defendant has also filed a counter claim. The plaintiff had not collected his goods despite specific directions of the defendant in reply to the legal notice. Therefore, the plaintiff is not entitled to recover any amount from the defendant. Rather, he is liable to pay the amount spent by the defendant in rent for storing the goods at a warehouse. Further, the plaintiff has not accounted the security deposit made by the defendant. The plaintiff has admitted receiving of reply and therefore, it cannot say that it was not aware of the request of the defendant to take the goods back. The defendant has proved the receipt of rent paid to the warehouse owner. Nothing contradictory comes in the cross examination of the witnesses examined by the defendant. The counter claim has remained unrebutted. No evidence has been led by the defendant in counter claim. Hence, it is prayed that the suit may be dismissed and counter claim may be decreed. Ld. Counsel for the defendant/counter claimant has relied upon the following CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 17 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding judgments in support of his arguments:
1) Bharat Forge Ltd. Vs. Onil Gulati, AIR 2005 Delhit 71369
2) Punjab Pen House Vs. Samrat Bicycle Ltd. {AIR 1992 811 Delhi 1.
3) Metro Cash & Carry India Pvt. Ltd. Vs Arambhan 1216 Hospitality Services Ltd., Civil Revision Petition No. 123/2021 (IO) decided on 07.04.2022 by Hon'ble High Court of Karnataka at Bengaluru.
4) Rangammal Vs. Kuppuswami and Ors. {AIR 2011 SC 17 26 23441.
5) Anil Rishi Vs. Gurbaksh Singh {(2006) 5 SCC 558} 2732
6) R.V.E. Venkatachala Gounder Vs. Arulmigu 3341 Viswesaraswami {Civil Appeal No. 10585 of 1996 dated 08.01.2003 decided by Hon'ble Supreme Court of India.
7) Thiruvengada Pillai VS. Navaneethamal & An. {Civil Appeal No. 290 of 2001 dated 19.02.2008 4249
15. I have heard the submissions of Ld. Counsels for the parties and perused the material on record. My issue wise finding are as under :
16. Issue no. 1 in the main suit. The issue reads as under :
"1.Whether plaintiff is entitled for recovery of Rs.4,02,762/ with interest @ 18% p.a. as prayed for? OPP"
17. Before discussing further, I deem it fit to discuss the judgments relied upon by the Ld. Counsel for the defendant during arguments. I have studied the judgment relied upon by the Ld. Counsel for the defendant. The judgments titled Bharat CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 18 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding Forge Ltd. vs Onil Gulati (supra), Punjab Pen House vs Samrat Bicycle (supra), and Metro Cash and Carry India Pvt. Ltd. Vs Arambhan Hospitality Services Ltd. (supra) have been cited to argue that invoices can also be considered as contract between the parties. The other judgments have been cited to argue that the burden to prove a fact is on the party who asserts it and that in a civil case, the suit is to be decided on the preponderance of probabilities. Further, the objection regarding the mode of proof of a document is required to be taken at the first available opportunity i.e. when the document is tendered in an evidence. All the legal principles argued by Ld. Counsel for the defendant are well established principles of law. Those judgments are, however, distinguishable on facts. None of these judgements has facts similar to the present cases.
18. The plaintiff in the main suit has prayed for recovery of Rs. 4,02,762/ with interest @ 18 % per annum. The total claim of the plaintiff includes the rent of Rs. 69,462/, the value of the goods i.e. Rs. 3 Lakhs, and interest from December 2013 till May 2014 @ 18 % p.a. i.e. Rs. 33,300/. The counterclaimant, on the other hand, has prayed for recovery of Rs. 1,44,344/ CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 19 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding alongwith interest @ 18 % per annum.
19. The plaintiff in his evidence as PW1 would depose that the plaintiff had supplied the scaffolding at the site of the defendant at Wazirpur Industrial Area Delhi on regular basis during the period staring from June 2012 till December 2013. However, the balance of Rs. 69,462/ was pending to be paid by the defendant towards rent of the scaffolding. Further, the goods worth Rs. 3 Lakhs are still lying at the site of the defendant as defendant is responsible for depreciation of the same. During his cross examination, the PW1 has stated that he has not filed any document with regard to the purchase of the goods supplied to the defendant. He is also unable to disclose when he had purchased the goods supplied to the defendant. He has also stated that he used to purchase the goods regularly. He would submit that no security amount was paid by the defendant. However, he has admitted that an advance amount of Rs. 50,000/ was paid by the defendant. The defendant has claimed that this amount of Rs. 50,000/ was a security deposit. This amount is not shown by the plaintiff in the statement of account filed in the Court.
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20. The relevant witness of the defendant / counterclaimant DW1 in his evidence would state that the defendant / counter claimant before availing the services of the plaintiff in the present suit had made advance payment of Rs. 50,000/ through cheque as security deposit. The invoices raised by the plaintiff were duly honoured and the payment were duly made. On 09.08.2013, the work at site was put on hold as the owner of the site was arrested in some case and the fact was duly informed to the plaintiff herein. Since, the work was suspended, the plaintiff herein was advised to remove their scaffolding from the site. Various phone calls were made in this regard. Personal visits were also made in this regard. However, the plaintiff herein failed to remove the scaffolding from the site. The defendant herein had cleared the bills up to July 2013 and paid Rs. 27,694/ The defendant herein had to remove the scaffolding from the site as the site was vulnerable and the goods lying at the site were under risk. The defendant herein had to spent money on shifting the scaffolding. The defendant herein had to take a warehouse on rent to store the scaffolding. Scaffolding were shifted in the month of October 2013 and till the date they CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 21 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding are stored in the said premises taken on rent. The defendant herein is paying Rs. 10,000/ per month as rent. It had spent Rs. 2,000/ on transportation and Rs. 1500/ on labour for loading and unloading of the scaffolding.
21. Perusal of the record would show that the fact of hiring of the scaffolding by the defendant from the plaintiff is an admitted fact. The defendant has also admitted raising of invoices by the plaintiff Ex. PW1/B3 to Ex. PW1/B20. All these bills are duly shown in the statement of account Ex. PW 1/A proved by the plaintiff. No objection regarding the mode or proof of these documents was taken by the defendant when those documents were tendered in evidence. Therefore, the documents stand proved as per law. However, the plaintiff has not filed on record any invoice corresponding to the last entry dated 28.02.2014 for Rs.12,712/ shown in the statement of account. The plaintiff has duly shown in the statement of account receiving of the cheque of Rs. 27,694/ on 28.09.2013. This is admitted by the defendant to be last payment made by the defendant to the plaintiff. However the plaintiff has been claiming the amount of Rs. 69,462/ which is the sum of last CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 22 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding four invoices Ex PW1/B1 to Ex. PW1/B4. Admittedly the defendant has not made any payment of these four invoices.
22. The defendant had claimed that it had orally informed the plaintiff to take the scaffolding back after the work on the site was stopped as the owner of the site was arrested in a legal case. The plaintiff has denied receiving of any such information.
23. It is settled position of law, which is even admitted and argued on behalf of the defendant also, that the burden to prove a fact is on the party who asserts it. Hon'ble Supreme Court of India in Rangammal Vs. Kuppuswami and Ors. {AIR 2011 SC 1726 23441 has discussed Section 101 of the Indian Evidence Act. It has observed as under :
"14. Section 101 of the Indian Evidence Act, 1872 defines burden of proof' which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 23 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding conclusion, he cannot proceed on the basis of weakness of the other party...."
24. In the present case, once it is shown by the plaintiff that the scaffolding was taken on rent by the defendant from the plaintiff. It was for the defendant to prove that the work on the spot was stopped due to the reason stated by it and that it had informed the plaintiff regarding the same and to take the material back. However, there is no evidence led by the defendant to show that the work on the site was actually stopped and that the owner of the site was arrested in a criminal case. The burden to prove these facts was on the defendant, once these facts were denied by the plaintiff. There was no requirement of leading of any evidence by the plaintiff to disprove those averments in the counter claim. The defendant has not proved these averments by leading any positive evidence. In these circumstances, it can not be held that the work on the site was stopped as claimed by the defendant and that it had orally informed the plaintiff to the take the scaffolding back. The defendant is a limited company which works through its directors and employees. Therefore, the defendant could have informed the plaintiff in writing that the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 24 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding goods were no more required and that the plaintiff should taken them back. However no such thing has been shown to be done by the defendant. Therefore, the defendant has failed to prove the above mentioned facts averred by it.
25. The defendant has claimed that it had asked the plaintiff to remove the scaffolding at the time of making payment of Rs. 27,694/ to the plaintiff in September 2023. As per the ledger of the defendant Ex. PW1/B, the cheque of Rs. 27,694/ was paid on 27.09.2013. As per the case of the defendant, when the plaintiff failed to remove the scaffolding, the defendant shifted it to warehouse on 13.10.2013 as per rent receipt Ex PW2/D2 issued for the period w.e.f. 13.10.2013 to 31.10.2013. As per the defendant, the scaffolding was not in use at its site after 13.10.2013. During crossexamination AR of the defendant Mr. Mangat Singh Aswal has admitted that the defendant received invoices Ex. PW1/B3 till Ex. PW1/B20 at their office for the goods supplied by the plaintiff. The invoice Ex. PW1/B4 has been issued for the period 01.09.2013 to 30.09.2013 and it was received by the defendant on 03.10.2013 and invoice Ex. PW 1/B3 has been issued for the period 01.10.2013 to 31.10.2013 CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 25 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding and it has been received by the defendant on 02.11.2013. There is no reason as to why the defendant's office would receive the invoice for the period of October on 03.11.2013 if the scaffolding was not in use after 27.09.2013. The official of the defendant could have written while receiving invoice Ex. PW1/B3 on 03.10.2013 or invoice Ex. PW1/B4 on 02.11.2013 that it was not using the scaffolding and the plaintiff should take it back.
26. Be that as it may, the duty of the defendant was not to just inform the plaintiff that the goods were not required and that the plaintiff should take them back. The duty of the defendant was to return the goods to the plaintiff after the purpose was served. As the record would reveal, the contract between the parties was that of bailment. Section 148, the Contract Act defines bailment, bailor and bailee. It reads as under:
"148. "Bailment" "bailor" and "bailee" defined.--A "bailment" is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the "bailor".
27. In the present case, the plaintiff is the bailor while the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 26 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding defendant is the bailee. Section 151, the Contract Act, provides the care to be taken by the bailee. It reads as under:
"151. Care to be taken by bailee.--In all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed."
28. Further, Section 160 and 161 of the Contract Act provide the duty of the bailee to return the goods to the bailor. The Sections read as under:
"160. Return of goods bailed, on expiration of time or accomplishment of purpose.--It is the duty of the bailee to return, or deliver according to the bailor's directions, the goods bailed, without demand, as soon as the time for which they were bailed has expired, or the purpose for which they were bailed has been accomplished.
"161. Bailee's responsibility when goods are not duly returned.--If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time."
29. The judgment titled Chaturgun v. Shahzady, AIR 1930 Oudh 395, which has also been relied upon by the Hon'ble Delhi High Court in Commissioner of Income Tax vs Visisth Chay Vypapar Ltd. ITA 689/2009, 712/2009 and 765/2009, decided on 30 August, 2011, is a case worth mentioning here. In the said matter the defendant borrowed the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 27 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding ornament for Ram Lila, which was stolen. Defendant denied its liability to compensate the plaintiff. The Court observed that while borrowing the ornament, the defendant had made an implied contract to return the borrowed goods to the plaintiff. Section 160 of the Act provides that once the purpose of the bailment is fulfilled or the specific time for which the goods are bailed are expired, the bailee becomes liable to pay back the borrowed goods following the directions of the bailor, without bailor's demand. As the goods were not returned to the bailor, the bailee was held liable. The appeal was allowed by the court while holding as under:
"4. In fact the transaction is a bailment as defined in Section 148 of the Contract Act, and a bailment is the delivery of goods by one person to another for some purpose upon a contract that they shall, when the purpose is accomplished, be returned. Thus, although no time was stipulated for the return of the articles there was in my opinion an implied contract that they should be returned when the purpose for which they were borrowed was accomplished. Section 46 of the Contract Act, lays down that where no time for performance of a contract is specified the engagement must be performed within a reasonable time, and the question "what is a reasonable time" is in each particular case a question of fact. It is clearly unreasonable for a person who has borrowed ornaments for use in a ceremony to detain them after the ceremony has been completed and the owner has demanded their return.
CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 28 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding "5. As I stated above this is not a case of detention, but if I were required to find what was a reasonable time for these articles to be returned, supposing that they had not been lost and that the defendant was in a position to return them, I should say that reasonable time was when the lender asked for the articles after the purpose for which they had been lent had been accomplished...."
30. Thus, the contract between the parties was a bailment contract. As per Section 160 of the Contract Act, it was the duty of the bailee i.e. the defendant to return or deliver the goods to the plaintiff as per the directions of the plaintiff without any demand as soon as the purpose for which they were bailed was accomplished. Section 161 of Act provides liability of the bailee when the goods are not returned by the fault of the bailee. In the present case, admittedly, the defendant did not return the goods to the plaintiff after the purpose was served. Therefore, the defendant was liable to make payment of the rent as claimed by the plaintiff.
31. Even though during his crossexamination, the witness of the defendant Mr. Mangat Singh Aswal has denied the knowledge regarding the invoices Ex. PW1/B1 and Ex. PW 1/B2, however nothing has been brought on record by the defendant to show that these bills were not received on behalf CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 29 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding of the defendant. There are receiving on those two invoices. Nowhere it has been stated by the defendant that those receiving have not been made on behalf of the defendant. Further, no objection regarding mode of proof of those documents was taken on behalf of the defendant when those documents were tendered in evidence. Therefore, at the stage of final arguments, the defendant cannot deny the fact of proving of those documents by the plaintiff. I get strength from the judgment of the Hon'ble Supreme Court of India in case titled R.V.E. Venkatachala Gounder Vs. Arulmigu 3341 Viswesaraswami (2003) 8 SCC 752 wherein it has been held as under :
"Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 30 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons:
firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court. "Privy Council in Padman and Others vs. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed: "The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 31 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention."
"Similar is the view expressed by this Court in P.C.Purushothama Reddiar vs. S.Perumal [1972 (2) SCR 646]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed:
"Before leaving this case it is necessary to refer to one of the contention taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Headconstables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility - see Bhagat Ram V. Khetu Ram and Anr. [AIR 1929 PC 110]."
32. In the present case also, the documents Ex. PW1/B1 and Ex. PW1/B2 have also been proved by the plaintiff as per law.
33. In the light of the discussion hereinabove, I hold that the plaintiff is entitled to the rent of the scaffolding items from the defendant for the last four invoices also which are Ex. PW1/B1 to Ex. PW1/B4. The total amount of these four invoices comes CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 32 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding to Rs. 69,462/. Further, the plaintiff is also entitled to recovery of the rent till the date of reply to the legal notice sent by the plaintiff to the defendant. The legal notice was replied by the defendant on 24.02.2014. The invoice Ex. PW1/B1 has claimed the rent till 31.01.2024. Therefore, I hold that the plaintiff is also to the rent for the month of February 2014 also. In the statement of account, the rent for the month of February 2014 is mentioned as Rs. 12,712/. The total amount comes to Rs. 82,174/. However, it is on record that the plaintiff had received Rs. 50,000/ from the defendant which the defendant claims to be advance while the plaintiff claims to be security. Be that as it may, it is on record that the plaintiff has not adjusted the said amount in the statement of account. The defendant is entitled for adjustment of the said amount in the total balance amount. After deducting the said amount from the total liability of the defendant, the liability of the defendant towards the rent comes to Rs. 32,174/. As the plaintiff had demanded the goods back by sending the legal notice, the plaintiff is not entitled to rent of the goods for further period starting from the date of legal notice as by replying the legal notice, the defendant also CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 33 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding confirmed that the scaffoldings were not required by it for the purpose for which they were hired.
34. Ld. Counsel for the defendant would argue that the plaintiff has mentioned on the invoice that "On nonpayment of two bills the firm has right to take the goods back as customers cost and risk". It is argued that the invoices were written contracts between the parties and therefore, the plaintiff was bound by the terms of the invoice. Therefore, once the payment of two continuous bills was not made by the defendant, the plaintiff should have taken back the material from the site and therefore, the defendant is not liable to make payment of the remaining bills.
35. I have considered the submissions. However, I do not find any merits in the same. No doubt as per the terms and conditions mentioned in the invoice, the plaintiff had a right to take the goods back if payment of two bills was not made by the defendant. However this right of the plaintiff does not become his responsibility to take the goods back in all cases where payment of two bills is not made by the defendant. It simply means that the plaintiff can avail this right to take the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 34 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding goods back or he can wait till the goods are actually returned and he can claim the rent for the said period. The nature of goods is such that they cannot always be taken back at any point of time. Suppose a scaffolding is used while pouring lintel at a site and two bills were due on the day when lintel was poured. Still, the plaintiff cannot just remove those scaffolding for a certain period as per rules of construction otherwise, the building might fall.
36. Further, the plaintiff has also filed various challans which were duly received on behalf of the defendant and which have been proved on record which are Ex. PW1/C1 to Ex. PW1/C7. These invoices / challans are Ex. PW1/C1 to Ex. PW1/C7. Some of these challans are shown to be received by the defendant. In any case, the defendant has not disputed receiving of these challans. There are certain terms and conditions mentioned on these challans. The conditions printed on the challans read as under:_ "Terms :(1) The customer is responsible for the breakage and loss of the material.
(2) The customer will receive and return the material at his own expenses and responsibility. From at NARAYANI RATAN SCAFFOLDING"
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37. All these challans also bear the loading charges and freight charges which shows that it was duty of the defendant to pay the loading charges and freight charges. As per term (2), it was the duty of the defendant to return the material at its own expenses to the plaintiff which is clearly mentioned on challans and even on the invoices. As already discussed, the challan and invoices are also contract between the parties. Therefore, the parties are bound with the terms mentioned in the agreement. I get strength from the judgment titled Bharat Forge Ltd. Vs. Onil Gulati, AIR 2005 Delhit 71369 & in Punjab Pen House Vs. Samrat Bicycle Ltd. AIR 1992 811 Delhi 1. The defendant was under a duty to return the goods to the plaintiff as per the terms mentioned in the challan. The conjoint reading of the terms and conditions mentioned on challans and on invoices would show that it was the duty of the defendant to return the goods to the plaintiff. The defendant had not returned the goods to the plaintiff. Therefore, it is liable to pay the rent for the period as claimed by the plaintiff.
38. Now, I come to decide whether the plaintiff is entitled to recover Rs. 3 Lacs as value of the goods lying with the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 36 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding defendant. Perusal of the record would show that the items of the plaintiff are subject to decay and they are perishable in nature and during period of time they turn into piece of scrap having no usage for the purpose of construction. Once the strength of the scaffolding is deteriorated it does not remain suitable to be used for the purpose for which the scaffolding are are built for.
39. The plaintiff has not brought on record any invoice to show the amount spent by him to purchase the scaffolding which were sent at the site of the defendant. There is also no material on record to show as to what was the value of the scaffolding items which were given on rent to the defendant. The plaintiff has also not mentioned the total weight of the items supplied by him to the defendant. No list of items has been filed. Also, there is nothing on record to show whether those items were newly purchased or they were in use for quite long time. During his crossexamination, the plaintiff as PW1 has stated that he keeps purchasing scaffolding items regularly. Thus, there must have been some old pieces of scaffolding as well as some new pieces of scaffolding in the store of the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 37 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding plaintiff. The burden was on the plaintiff to prove as to what was the value of the material supplied by him to the defendant for hire. The plaintiff has claimed Rs. 3 Lacs as value of the goods. However, no evidence has been led by the plaintiff to prove the value of the goods lying with the defendant. In the absence of any evidence, the plaintiff cannot be held entitled for recovery of Rs. 3 Lacs as value of the goods. However, as the witness of the defendant in his cross examination has admitted the value of the goods to be between Rs. 15,000/ to Rs. 20,000/, I am of the considered opinion that the plaintiff is entitled to recover amount of Rs. 20,000/ towards value of those goods / scaffoldings. I am conscious of the fact that the value of the goods could not have been Rs. 20,000/ as the rent of the same was more than Rs. 10,000/ per month. However, in the absence of any evidence which was required to be led by the plaintiff to prove the value of the goods, I am unable to grant any amount more than the amount admitted by the defendant to be the value of the goods. The plaintiff has not prayed for any injunction to direct the defendant to return the goods. Therefore, no such relief is granted by the Court.
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40. The plaintiff has claimed the interest @ 18% p.a. However, there is nothing on record to say that it is an agreed rate of interest. Be that as it may, it is discretion of the Court to award interest pendente lite and future interest even if there is a specific contract between the parties. I get strength from the judgment passed by Hon'ble Supreme Court of India in case titlted Central Bank of India Vs. Ravindra & Ors. SLP (C) 2421/1993 decided on 18.10.2001. In the facts and circumstances of the case, that the rate of interest claimed by the plaintiff is very high and it can not be awarded. I hold that the plaintiff is entitled to interest @ 10% p.a. which is a rate at which the public banks in India lend money. The issue is accordingly decided in favour of the plaintiff.
41. Issue No. 1 in the counter claim : The issue reads as under :
"1.Whether plaintiff is entitled for recovery of Rs.1,44,344/ with interest @ 18% p.a. as prayed for? OPP
42. The averment of the defendant in respect of its counter claim is that it had to take a warehouse on rent to store the scaffolding of the plaintiff for which it is paying rent of Rs.
CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 39 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding 10,000/ per month. It has also claimed that it had spent money on transportation to carry scaffolding from the site to the warehouse and on labour for loading and unloading them. The defendant has examined one witness who is stated to be the owner of the warehouse. He has proved his signatures on the receipts which are Ex. PW2/D1 to Ex. PW2/D52. On the basis of these rent receipts and the receipt of transportation and labour payment, the defendant has prayed for recovery of the amount from the plaintiff in its counterclaim.
43. As already discussed, the contract between the parties was that of bailment as defined under Section 148, the Contract Act. In the present case, the plaintiff is the bailor while the defendant is the bailee. As per Section 151 of the Act, the defendant was bound to take as much care of the goods bailed to it as a man of ordinary prudence would, under similar circumstances, take of its own goods of the same bulk, quality and value as the goods bailed. As per Section Section 160 and 161 of the Contract Act, it was the duty of the defendant to return, or deliver according to the bailor's directions, the goods bailed, without demand, as soon as the time for which they CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 40 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding were bailed was expired, or the purpose for which they were bailed had been accomplished. Further, as per Section 161 of the Act the defendant is responsible to the plaintiff for any loss, destruction or deterioration of the goods. I get strength from the judgment titled Chaturgun v. Shahzady, AIR 1930 Oudh 395, which has already been discussed hereinabove.
44. In the present case, the defendant was under a duty as per the law to abide by the terms of the agreement between the parties. Admittedly there was no written agreement shown to have been executed between the parties, before starting the transactions. However, the plaintiff has filed certain challans issued by the plaintiff to supply the goods / scaffolding to the defendant. These invoices / challans are Ex. PW1/C1 to Ex. PW1/C7. As already discussed those documents have already been proved by the plaintiff. I am of the considered opinion that the defendant was under a duty to comply with the terms mentioned in the challans. As per term (2) mentioned in the challans, it was the duty of the defendant to return the material at its own expenses to the plaintiff which is clearly mentioned on challans and even on the invoices. As already discussed, the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 41 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding challan and invoices are also contract between the parties. Therefore, the parties are bound with the terms mentioned in the agreement. A prudent person would have returned the material / scaffolding to the plaintiff at his office / store once the use of the scaffolding was no more required by it. A prudent person would not have taken a warehouse on rent to store those items unless they were taken back by the plaintiff. Admittedly, the defendant is in the construction and interior business which requires scaffoldings in the regular course of its business. Therefore, I find merits in the submission of the learned counsel for the plaintiff that possibility of using of the material by the defendant at it's different sites can not be ruled out.
45. There is one more aspect which is worth noting. During his crossexamination, Mr. Mangat Singh Aswal, the witness of the defendant has stated that the value of the goods supplied by the plaintiff was worth around Rs. 15,000/ to Rs. 20,000/. Therefore, it is highly improbable that the defendant could have taken on rent a warehouse at the rate of Rs. 10,000/ per month to store the goods worth Rs. 15,000/ to 20,000/ only. Therefore, the submission of the defendant that it had taken the CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 42 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding warehouse on rent to store the scaffolding of the plaintiff is not found to be plausible. No doubt, the witness PW2 examined by the defendant in the counter claim has shown that he had given a godown on rent to the defendant. However, this fact is not sufficient to prove that the godown was taken on rent by the defendant just to store the items belonging to the plaintiff.
46. Further, the nature of the goods is such that they are used in open sky during the construction activity at a building or site. Those items do not require any specific shade for storage and they can well be kept in open. Therefore again it does not appear to be possible that the defendant, which itself is in the business of construction, would have hired a warehouse to store such items. In any case, as already mentioned here above, the duty of the defendant was to return the material to the plaintiff and not to keep them with itself. Therefore, I am of the considered opinion that the defendant is not entitled to recovery of any amount from the plaintiff as claimed by it in the counter claim. The counter claim is without merits. The issue is accordingly decided against the counter claimant (defendant in the main suit).
CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 43 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023 M/s Narayani Ratan Scaffolding Vs. M/s. Interior and Construction Private Limited & M/s. Interior and Construction Private Limited vs. M/s Narayani Ratan Scaffolding
47. Issue No. 2 : Relief : In the light of the discussion hereinabove, the counter claim is dismissed. The suit filed by the plaintiff is decreed. The plaintiff is entitled to a decree of recovery from the defendant a sum of Rs. 32,174/ as arrears of rent of scaffolding and Rs. 20,000/ as value of the scaffolding. The plaintiff is also entitled to interest @ 10 % p.a. from the date of legal notice i.e. 23.01.2014 till preparation of decree. The plaintiff is also entitled to interest @ 6 % p.a. from the date of decree till realization of the amount. The plaintiff is also entitled to cost of the suit. The plaintiff shall pay the deficient Court Fee, if any within 15 days.
48. Decree sheet be prepared accordingly. It is directed that the decree shall not be executable unless the plaintiff pay the deficient Court Fee, if any. It be specifically mentioned in the decree if there is non payment of any Court Fee which is required to be paid. Digitally signed by DINESH DINESH KUMAR Pronounced in the open Court KUMAR Date:
2023.04.01 on this 31st Day of March 2023. 15:16:38 +0530 (DINESH KUMAR) ADDL. DISTRICT JUDGE02 SOUTH, SAKET COURTS, NEW DELHI.
CS DJ No. 6566/2016 & CS DJ No. 5898/2016 Page 44 of 44 Dinesh Kumar/ADJ02/South/Saket/ND/31.03.2023