Delhi District Court
A. K. Tiwari vs Anupam Co-Operative Group Housing ... on 29 July, 2013
CS No. 268/11
IN THE COURT OF JITENDRA KUMAR MISHRA ADDITIONAL
DISTRICT JUDGE-Central-9, DELHI.
Civil Suit No.: 268/11.
Unique Case ID No.02401C0581392011.
A. K. Tiwari
Sole Prop. M/s. Power Tech Engineers,
C-71/A, First Floor, Kalkaji,
New Delhi-19. .....Plaintiff
Versus
Anupam Co-operative Group Housing Society Ltd.
B-13, Vasundra Enclave,
Through its President/Society,
Delhi-110096. ...Defendant
Date of institution of the suit : 29.11.1989.
Reserved for judgment on : 12.07.2013.
Date of pronouncement of judgment : 29.07.2013.
SUIT FOR DECLARATION AND INJUNCTION AND FOR THE
RECOVERY OF RS.3,06,879/- FOR BREACH OF CONTRACT U/S 72 OF
CONTRACT 1872.
JUDGMENT
01. This is a suit for declaration, injunction and for the recovery of Rs.3,06,879/- for breach of contract under Section 72 of Contract 1872 filed by the plaintiff.
02. Brief facts of the case are :-
(a) Plaintiff is engaged in the work of electrical contractors having on its roll well qualified engineers and technicians. Defendant is a limited Co-operative Group Housing Society framed under the Delhi Co-
A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 1 CS No. 268/11 operative Societies Act 1972 for the purpose of providing flats to its members and is governed by the said Act.
(b) Defendant invited sealed tenders for electrification of their 100 flats being constructed at Vill. Dhallupura, Delhi and the defendant along with others submitted his tender in a sealed cover as desired. All the sealed covers containing tenders were opened in the presence of all the Tenders/Contractors and office bearers of the Society and after all due deliberation the work of electrification of 100 flats was awarded to the plaintiff.
(c) Plaintiff was to be paid by the defendant society for the work executed through Running Bills and accordingly, the plaintiff started execution of work to the entire satisfaction of the defendant society. Running bills were submitted for the work executed at site of work and the defendant was fully satisfied about the quality and quantity of the work till submission of the fifth running bill and payment was being made after due verification.
(d) Plaintiff submitted his sixth running bill on 21.02.89 for amount of Rs. 10,562.50 and it was verified for payment of Rs.8715.50/- but it was not paid till the final bill including damages for an amount of Rs. 2,91,579/- was submitted on 25.08.89.
(e) Secretary of defendant asked the plaintiff to give him a personal loan of Rs.10,000/- and the plaintiff in good faith made the payment of Rs. 10,000/- to Sh. A. K. Prasad, the Secretary of plaintiff. Later, he demanded further payment of Rs.20,000/- as balance of illegal unwarranted commission on the entire amount of contract. The plaintiff refused to bow before such an illegal demand of Secretary. The secretary filed a false complaint against the plaintiff on 15.04.89 with the police on unfounded in order to achieve the objective to extract money on the basis of illegal demand.
(f) On the same day i.e.15.04.89 under the instruction of Secretary of A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 2 CS No. 268/11 the defendant communicated through its Architect, the defendant malafidely, illegally and arbitrarily rescinded the contract of the plaintiff without serving any show-cause notice or specifying any valid reason for such cancellation of work contract. Such cancellation by the defendant is against all norms of justice.
(g) Final bill was submitted by the plaintiff on 25.05.89 which has not been paid by the defendant so far.
(h) In addition to the outstanding bill the defendant has in its illegal possession tools and equipments amounting to Rs.15,300/- and the defendant has not returned these tools and equipments and belongings to the plaintiff.
(i) By illegally and arbitrarily revoking the work contract of the plaintiff the defendant has deprived the plaintiff of his right to profit in the remaining work and also withholding the amount of the bill by the defendant.
(j) Since the contract was Labour Rate contract, the supply of material was the responsibility of the defendant but the material required for the electrification was invariably supplied late and often less in required quantity, which resulted into wastage of labour. The work of electrification always follows the civil work but the defendant invariably failed to maintain the schedule of completion of civil work and the result was that the plaintiff had to slow down the work of electrification to keep pace with the civil work. This had also resulted in the wastage of labour. Final bill includes all such claims of the plaintiff, amount of which comes to Rs.2,91,579/-
02. Written statement filed by the defendant wherein it is objected that the suit is barred by limitation. It is further stated that the plaintiff has no locus-standi to file the present suit. It is further stated that the suit is a camouflage to recover the claim of Rs.2,81,255/-. It is further objected that the plaintiff failed to complete the sample flats as per letter dated 13.0.1989 A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 3 CS No. 268/11 and misbehaved with the Secretary of the society. It is further denied that any work of electrification of 100 flats was awarded to the plaintiff as claimed as it was not possible in absence of any contract duly executed between the parties and in accordance with the bye-laws of the society. Since the plaintiff failed to enter into a regular contract in respect of work awarded to him as such contract if any, has become unenforceable. It is further stated that the work stated was carried out by the plaintiff in anticipation to the regular contract between the parties which day of course never arose on account of the malafide intentions and non-cooperative attitude of the plaintiff. Claim of the plaintiff is specifically denied. It is further stated that if any personal obligation has been incurred by the plaintiff with Sh. A. K. Prasad, the society can not be made responsible for the same and the claim of the plaintiff against the defendant in the said context is indeed fanciful and untenable. Rest of the contents of the plaint are also denied in view of averments made in the written statement.
03. Replication to the written statement has filed wherein averments made in the written statement are denied and contents of the plaint are reiterated and affirmed.
04. My ld. predecessor by order dated 02.09.1997 framed following issues:
1. Whether the plaintiff has performed his part of contract as claimed in the plaint ? OPP.
2. Whether the defendant illegally terminated the contract in question of the plaintiff? If so, its effect ? OPP.
3. Whether the plaintiff is entitled to the suit amount ? OPP.
4. Whether the plaintiff is entitled to the interest ? If so, at what rate, for what period and amount ? OPP.
5. Relief.
05. By order dated 17.08.2001 my ld. predecessor framed following additional issue :
A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 4 CS No. 268/11
1. Whether suit is not maintainable for want of notice under Section 90 of the Delhi Cooperative Societies Act, 1972 ? OPD.
2. Relief.
06. The Hon'ble High Court vide order dated 14.10.2011 made observations regarding additional issue:
"4. In view of the aforesaid decision of the Division Bench relied upon by the counsel for the appellant, I hold that once the case has been contested all through by the respondent/ defendant, the suit could not have been dismissed under Section 90 of the Delhi Co- operative Societies Act, 1972."
07. Thus, this additional issue has already been disposed of by the Hon'ble High Court and therefore, this court has to follow the order passed by the Hon'ble High Court and the order is binding upon the parties as the same attained finality.
08. To prove its case plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit Ex.PW1/A. He further relied upon Ex.PW1/1 to Ex.PW1/24. Ex.PW1/22 is not on the record. PW-1 was cross examined at length by ld. counsel for the defendant and thereafter by separate statement, ld. counsel for the plaintiff closed P.E. In defence Professor A. K. Prasad appeared as DW-1 who tendered his evidence by way of affidavit Ex.DW1. He was cross examined by ld. counsel for the plaintiff and thereafter ld. counsel for the defendant closed D.E.
09. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved during the trial. My issue-wise findings are:-
Issues no. 1 to 3.
A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 5 CS No. 268/11
1. Whether the plaintiff has performed his part of contract as claimed in the plaint ? OPP.
2. Whether the defendant illegally terminated the contract in question of the plaintiff? If so, its effect ? OPP.
3. Whether the plaintiff is entitled to the suit amount ? OPP.
10. I am going to dispose of issues no.1 to 3 by common findings as facts pertaining to these issues are interrelated to each other. Affidavit of PW1 i.e. Ex.PW1/A is similar to the averments made in the plaint. He relied upon receipt Ex.PW1/1. Document is perused. This is a receipt issued by the defendant to the plaintiff regarding earnest money for electrification of work. Ex.PW1/2 is letter dated 06.09.1988 issued by the defendant to Sh. Narender Kapoor wherein it was informed that contract for the award of electrical work with the defendant was not signed and it was requested to make ready for its execution at the earliest. Plaintiff further relied upon Ex.PW1/3 which is agreement of labour contract basis. It is further stated in para 8 of Ex.PW1/A that the agreement of labour contract basis was signed by Sh. Narender Kapoor, partner of the Architect Firm and the plaintiff, for the agreement of amount of Rs.2,81,255/-. Document is perused. This document does not bear signature or seal of the defendant. During cross examination, it is stated by the plaintiff that he was informed by the Architect of the defendant as well as through some English newspaper about the work tender of the society. He did not have the copy of the tender which he had filed in sealed cover as he was having only one copy and the same was given to the defendant. It is further stated that thereafter, he entered into the agreement with the defendant through architect which is Ex.PW1/3. It is further admitted that there is no direct letter to the effect that the work was carried out by the plaintiff was entirely to the satisfaction of the consultant, architect and defendant. He has further admitted that he has not filed any other letter which can prove the delay on the part of the defendant for A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 6 CS No. 268/11 approval of the work done in the sample flat, the bills which were issued to raise and certificate by the project management consultant and then, it was further approved by the architect of the defendant and then society used to make part payment in the said bill. It is further admitted that he has not raised any written objection to the fact of issuance of part payment without any system. He has further admitted that he has not filed any receipt or agreement of the loan given to Sh. A. K. Parshad as same was not prepared and money was given in cash. A suggestion was given that Sh. A. K. Parshad did not ask for any loan from him and that is why no receipt or agreement is there or he has not paid any money to Sh. A. K. Parshad and the suggestion was denied.
11. Ex.DW1 is similar to the averments made in the written statement. In cross examination it is admitted by DW-1 that Ex.PW1/5 was written by him to the plaintiff. This letter was written to the plaintiff by DW1 wherein it was informed to the plaintiff that after final negotiation the contract amount was fixed to Rs.2.81 lacs . Thus, the contract amount as agreed to both of Rs.2.81 lacs. It is further stated by DW-1 that after Ex.PW1/5 the architect of the society, Mr. Kapoor, the proprietor of the firm signed Ex.PW1/3 with the plaintiff. It is further deposed by DW1 that he had written Ex. PW1/14. This letter was written by DW1 to architect Mr. Adlakha wherein it was asked to appoint an electrical contractor to do the remaining work and also asked for preparation of final bill for payment till 14.04.89 for the defendant. Letter dated 24.05.89 was issued by M/s. Adlakha and Associates to the plaintiff for submission of final bill upto 14.04.89. Ex.PW1/16 is letter issued by the plaintiff to the defendant to release the payment of Rs.2,91,579/-. It is admitted by PW1 that he has not filed any government notification on the basis of which the labour escalation charges were mentioned as Rs.21,572.07/- in Ex.PW1/16. Thus plaintiff is not able to prove item no.3 of Ex.PW1/6. It is further admitted that except letter dated 15.09.89 , he has not filed any other letter or document to support A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 7 CS No. 268/11 loss of profit of Rs.1,48902.48 claimed by him. File is perused. There is no document on the record dated 15.09.89. In affidavit also Ex.PW1/A there is no mention about letter dated 15.09.89. In para 38 of Ex.PW1/A it is stated by PW1 that the detailed calculation of loss of profit is provided in the final bill. In the final bill Ex.PW1/16 and Ex.PW1/17 where are Annexure 4 is pertaining to the loss of profit in final bill. Annexure 4 is perused. It is merely a calculation of loss of profit. This document does not bear signature of any of the parties. Moreover, this document has not been proved in accordance with the law. Moreover, Item no.1.3 of this document mentions about total work yet to be done and it is about Rs.2,26,440/- but this court can not lost the sight to the very fact that as per Ex.PW1/5 the total amount for contract was fixed @ Rs.2,81,000/- and item no.1.1 already mentions about Rs.2,81,255/-. Thus, in my considered opinion the plaintiff is not able to prove this document in accordance with the law, as also it is not in consonance with Ex.PW1/5. PW1 further admitted that he has not filed any document regarding the tools and equipments which were brought to site for execution of the work by him which were there, though he has filed the list of the tools and equipments which were there as per Ex.PW1/18. It is further stated that the material was entered into the material record register maintained by the society at site but further admitted that the same is not on the record. Thus, the claim of tools of equipments has also not been proved by the plaintiff as per law. It is further admitted that the plaintiff has not filed any government notification on the basis of which the labour escalation charges were mentioned in Ex.PW1/17. Thus, plaintiff is not able to prove labour escalation charges as well. It is further admitted by PW-1 that he has not filed any document regarding the verification and approval of the seventh running bill of Rs.1,04,799.26. Thus, plaintiff is not able to prove this amount also as per Ex.PW1/17. It is further admitted by PW-1 that he had not written any letter to the effect that he never received material for execution of the work in time and required drawing were not delivered to him A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 8 CS No. 268/11 in time. It is further admitted by PW-1 that he had not written any letter to the defendant regarding the fact as mentioned in his affidavit that he had to slow down the work of electrification to keep pace with the civil work and that had resulted the wastage of labour. It is further admitted by PW1 that he had not written any letter except letter dated 06.01.89 which is Ex.PW1/8 for approval of the work done by the plaintiff in the sample flat though he personally followed up for the approval. However, it is not explained by PW-1 why he was not able to get the said approval and the reasons behind that. It is further admitted by PW-1 that he has not sent letter which can prove the delay on part of the defendant for approval of the work done in the sample flat. He has explained that the bills which were raised were certified by the project management consultant then it was further approved by the architect of the defendant and then society used to make part payment of the said bills. It is stated by DW1 in para 7 of affidavit that out of total work assigned to the plaintiff, the plaintiff completed the work of Rs.54,615/- subject to the verification by the architect and meanwhile, obtained Rs. 40,000/- from the defendant with the assurance that the rest of the work would be completed within the stipulated time. It is further stated that time was made the essence of the contract in which the plaintiff was failed to stick miserably. In cross examination of DW1 there is no challenge by the plaintiff to this piece of evidence.
12. In para 3 of Rajinder Pershad (dead) by LRs. Vs. Smt. Darshana Devi' 93 (2001) DLT 1 (SC) held that:
'.........There is an age old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you cannot impeach his credit. In State of U. P. v. Nahar Singh (dead) and Ors. III (1998) (3) SLT 510=1998(3) SCC 561, a Bench of this Court (to which I was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examine a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed:
A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 9 CS No. 268/11 "The oft-quoted observation of Lord IIcrschell, L.C. In Brownev. Dunn clearly elucidates the principle underlying those provisions. It reads thus:
'I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some question put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses."
13. In para 8 of Ex.DW1 it is further stated by DW1 that the plaintiff did not complete the sample flat as per letter dated 13.04.1989 and subsequently, failed to turn up to complete the work assigned to him. Again, there is no challenge by the plaintiff to DW1 for this piece of evidence. Moreover, during cross examination PW1 himself admitted for non furnishing of various claims to the defendant as mentioned in Ex.PW1/17.
A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 10 CS No. 268/11 No reason has been disclosed by the plaintiff. Thus, issue no.1 is answered against the plaintiff as the plaintiff is not able to prove this issue and therefore, this issue is being answered against the plaintiff as the plaintiff was failed to perform his part of contract as claimed in the plaint.
14. Onus to prove issue no.2 was upon the plaintiff. In para 27 of Ex.PW1/A it is the case of PW1 that the plaintiff as per direction of the project management consultant completed the conduit work in roof flat for three flats by 18.04.1989 and therefore, plaintiff was not allowed to work. The plaintiff was never asked to restart the work as claimed by the defendant in his written statement. On the other hand, it is the case of DW1 in para 8 of Ex.DW1 that the plaintiff did not complete the sample flat as per letter dated 13.04.89 and subsequently, failed to turn up to complete the work assigned to him. In cross examination, it is admitted by PW1 that no document to the effect of commencing the work has been filed by him. It is needless to repeat that PW1 also stated that he has not filed any document regarding the satisfaction of the consultant architect and the defendant towards the satisfaction for the work. A suggestion was given to PW1 during his cross examination that he himself had stopped carrying out the work and defendant had to engage another contractor to get the work done. The suggestion was denied. However, during cross examination of DW1 no suggestion or challenge is there by the plaintiff to DW1 that the plaintiff had completed the work or he did not stop the work himself. Thus, in these circumstances the plaintiff is not able to discharge the onus to prove issue no.2 that the defendant had illegally terminated the contract. In such circumstances, issue no.3 also goes against the plaintiff to the effect that the plaintiff is not entitled to any amount from the defendant.
Issue no.4.
Whether the plaintiff is entitled to the interest? If so, at A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 11 CS No. 268/11 what rate, for what period and amount? OPP.
15. Onus to prove this issues was upon the plaintiff. Since issue no.3 already answered against the plaintiff therefore, there is no question for any interest to be paid to the plaintiff.
Issue No.5.
Relief.
16. In view of the observations made herein-above, the suit of the plaintiff is dismissed. There is no order of costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court today on 29.07.2013 (Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 29.07.2013 A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 12 CS No. 268/11 CS No.268/11 29.07.2013 Present: None.
Vide my separate judgment announced in the open court today, the suit of the plaintiff is dismissed. There is no order of costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Jitendra Kumar Mishra) ADJ-09, Central, Tis Hazari Courts, Delhi 29.07.2013 A. K. Tiwari Vs. Anupam Cooperative Group Housing Society Ltd. 13