Delhi District Court
Krbl Limited vs Srt Innovision Services Pvt. Ltd on 8 October, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 16/10
Unique ID No. 02401C0023532010
MEMO OF PARTIES
KRBL Limited
Through Sh. Narendra Sharma,
General Manager,
Registered Office At:
5190, Lahori Gate, Delhi 110006
...........Plaintiff
VERSUS
SRT Innovision Services Pvt. Ltd.
Through Col, S.K. Baliwal, Director
nd rd
Block 68/273, 2 & 3 Floor, Sukhrali, M.G. Road,
Gurgaon 122001
..........Defendant
Date of institution of the Suit: 20.01.2010
Date on which judgment was reserved: 26.09.2013
Date of announcement of Judgment: 08.10.2013
SUIT FOR RECOVERY OF RS. 2,48,410/ (RUPEES TWO LACS FORTY
EIGHT THOUSAND FOUR HUNDRED & THEN ONLY)
JUDGMENT
1. Plaintiff has filed the present suit seeking recovery of damages of Rs. Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 1/22 2,58,410/.
Plaintiff's Case
2. It is the case of the plaintiff that it is a registered company having its head office at 5190, Lahori Gate, Delhi 110006. The defendant is also a certified company running the business of providing security services. According to an agreement dated 06.06.2008 executed in Delhi between the parties the defendant agreed to provide security services for the plaintiff's godown situated at Alipur, Delhi. The plaintiff required 28 security guards, 3 security supervisors and one security officer for 12 hours in each shift. The wages decided between the parties were as follows for the security guards Rs. 4,500/ to each per month for 12 hours per day, for security supervisors Rs. 5,500/ per month for 12 hours shift and for security officer Rs. 6,500/ per month for 12 hours guarding shift per day. It was also laid down in the agreement that the security services of the defendant would initially be treated on a trial basis for two months and after satisfaction of the plaintiff regarding the said services it would be continued for one year. Accordingly, the th defendant provided security services from July, 2008 till 24 May, 2009.
3. In between on 12.08.2008 the theft of rice from the plaintiff's Mittal Godown situated at Alipur, Delhi was committed in the night due to the gross negligent act and with the conspiracy of the security guards of the defendant Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 2/22 and 117 jute bags of rice 105 quintals and 30 Kg rice were stolen, the cost of which came to Rs. 4,94,910/. The matter was reported to the police at PS:
Alipur, Delhi and a criminal case was registered vide FIR No. 200/2008 U/s 380 IPC. The matter was also reported to the defendant on the same date i.e. 13.08.2008 and the plaintiff and defendant entered into a verbal agreement as per which the defendant willfully agreed to compensate the loss caused by the defendant in a theft committed on 12.08.2008 due to the negligent act of its security guards. Under this agreement, the plaintiff would deduct 100% in the monthly payment of the defendant for the first time and the rest amount would be deducted as 50% in the further monthly payments of the defendant.
The process of deduction was to be continued till the full and final payment was made to the plaintiff for Rs. 4,94,910/ subject to which the plaintiff was not to proceed with the aforesaid criminal case against the defendant and its particular security guards. The plaintiff accordingly started deduction from July, 2008. Details of the deductions have been provided in the plaint in para6 thereof. The said deduction continued till February, 2009. The plaintiff further submits that for the month of July, 2008 the defendant raised the bill for a sum of Rs. 1,47,561/ which was contrary to the rate agreed under the th th agreement dated 06.06.2008. The said bill was received on 7 or 8 August, 2008 and the same was passed only for a sum of Rs. 1,37,468/ as per the Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 3/22 norms and agreement. Since the theft was committed at the Mittal Godown before releasing the cheque of Rs. 1,37,468/ therefore the said cheque could not be released to the defendant. The defendant also raised the bill for the month of August, 2008 for Rs. 1,54,026/ which was later on passed by the plaintiff for Rs. 1,45,500/. A sum of Rs. 3115 and Rs. 3297/ were deducted as TDS for the months of July and August, 2008 respectively and a sum of Rs. 20,5454/ was deducted by the plaintiff from the monthly payments to the defendant and a cheque for Rs. 71,102/ was released to the defendant for the months of July and August, 2008.
4. The defendant raised a bill for Rs. 1,61,467/ for the month of September, 2008 which was passed by the plaintiff for Rs. 1,62,467/ under which a sum of Rs. 3,682/ was deducted as TDS. The sum of Rs. 45,546/ was deducted with regard to the theft amount and a cheque of Rs. 1,14,229/ was paid to the defendant. Similarly, in October, 2008 the plaintiff avers that the bill raised for Rs. 1,60,532/ by the defendant was passed for a sum of Rs. 1,60,242/ under which an amount of Rs. 3,631/ as TDS was deducted and an amount of Rs. 2,908/ was deducted separately as glass of the General Manager's car was broken due to the negligent act of the security guards of the defendant. No deduction was made by the plaintiff towards theft amount with respect to the bills of November and December, 2008. Payment were Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 4/22 made by the plaintiff as mentioned in the plaint after deducting TDS and it is claimed that no deduction was made against the theft amount as per the request of the defendant. Deduction was however made in the month of January, 2009 and the bill of the defendant was passed for Rs. 1,39,468/. TDS was also deducted. In the month of February, 2009 only a deduction of TDS was made from the bill raised by the defendant. It was averred that till Feb, 2009 there was no complaint from the part of the defendant to the plaintiff regarding the aforesaid deduction made by the plaintiff
5. On 25.03.2009 the defendant without any prior notice and information to the plaintiff withdrew/recalled its security from the premises of the plaintiff at Alipur Unit without handing over the attendance register, cash register, daily cash gate pass commission etc. to the plaintiff. Defendant did not raise any bill for 24 days for the month of March, 2009 and the amount of 24 days of the defendant is still pending with the plaintiff. The plaintiff informing the police on 01.04.2009 about the fact of articles not being handed over by the defendant's security.
6. The plaintiff claims that the defendant is still liable to pay a sum of Rs. 2,48,410/ along with interest @ 24% per annum excluding mesne profits which the plaintiff requested for and gave reminders to the defendants. It is claimed that the defendant put a proposal before the plaintiff for deduction of Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 5/22 the theft amount of Rs. 4,94,910/ from the monthly payment of the defendant by the plaintiff therefore the defendant was bound to follow the said compromise for deduction of the plaintiff. The defendant never requested or made any complaint to the plaintiff for the deduction of Rs. 2,74,408/ since July, 2008 till Feb, 2009 which showed that the defendant had accepted the said deduction made by the plaintiff regarding loss caused to the plaintiff by defendant on 12.08.2008. The plaintiff has annexed certain documents and it was averred in the plaint that these documents have been concealed by the defendant in the case filed by him titled SRT Innovision Services Pvt Ltd. Vs. M/s. KRBL Ltd. (suit no. 461/09). The plaintiff thus filed the present suit, praying for a decree of damages of Rs. 2,48,410/ along with interest @ 24% per annum from the date of filing of the suit till realization of the amount. Case of the Defendant
7. Written statement was filed by the defendant. Preliminary submissions were made. It is submitted that the agreement dated 25.06.2008 was entered into between the parties but copy of the said agreement was not supplied to the defendant. The defendant rendered services to the utmost satisfaction of the plaintiff but plaintiff always provided deficient payments. The details of the outstanding amount for the period July, 2008 and March, 2009 have been mentioned. The defendant avers that it requested the plaintiff through e Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 6/22 mails, personnel meeting and telephonic conversations to clear the outstanding dues but the plaintiff intentionally did not settle the outstanding dues. Vide emails dated 26.02.2009 and 09.03.2009, the Managing Director of the defendant Col. S.K. Baliwal sought release of the short payment. The plaintiff kept assuring that it would clear outstanding dues. Through email dated 17.03.2009 however plaintiff refused to release the outstanding dues. Vide email dated 21.03.2009 the plaintiff was asked to release the outstanding payments and it was made clear that if the outstanding dues were not cleared it would not be feasible to undertake any future assignments of the plaintiff. Plaintiff in order to escape its liabilities lodged a vague complaint against theft of rice from their Alipur Unit (Mittal Godown). The alleged theft in the godown happened on 12.08.2008 whereas FIR was lodged only 27.08.2008. The plaintiff had not blamed any of the guards in the FIR. The security guards of the defendant were not part of the audit team of the plaintiff therefore the the guards of the defendant were never aware of the quantity or quality of the goods taken outside the godowns of the plaintiff. The duty of the guards was to merely sign the InPass and OutPass of the vehicle. Once the defendant was informed about the alleged theft the defendant bonafidely agreed to cooperate with the plaintiff jointly to investigate the matter. The plaintiff intentionally and deliberately avoided to Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 7/22 include the defendant in the process. The fate of the FIR was also not known to the defendant because the police had never called the officials of the defendant company or its guards to participate in its investigation. The outward challan was only signed by the supervisor of the plaintiff and not by the guards of the defendant therefore the guards of the defendant were not responsible for any alleged theft. The plaintiff malafidely claimed the guards of the defendant for negligence in the month of July, 2008 when allegedly front glass of car of the General Manager was broken. The defendant had time and again sent officials from the company to resolve the matter with the plaintiff and analyze the performance of the security guards deployed at the Alipur Unit. Mr. Sumit Anshuman, Mr. Dev Kumar and Mr. Gopal i.e. officials of the defendant on various dates visited the Aliput Unit of the plaintiff for proper diligence of the services provided by the defendant.
8. On 24.02.2009 the officials of the defendant visited the plaintiff and informed the plaintiff that due to their unprofessional conduct regarding the non payment of the outstanding dues, the defendant was forced to withdraw the security services and the plaintiff was given one month period for withdrawal of the security personnel from the Alipur Unit as per agreement. In contravention of the agreement the plaintiff gave surplus duty to the guard to handle the monetary affairs. Vide email dated 26.02.2009 Col. S.K. Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 8/22 Baliwal of the defendant asked the plaintiff to streamline the standard operating procedure (SOP) of the guards spelling out the responsibilities so as to ensure quality service. The plaintiff avoided to frame such a SOP in order to exploit the guards and to take additional work in less money. After expiry of 30 days notice period, the defendant on 25.03.2009 sent Mr. Sumit Anshuman, AGM along with some security guards to the Aliput Unit of the plaintiff for the purpose of handing and taking over but Sh. Narender Sharma and some other employees of the plaintiff company did not permit the officials of the defendant to even enter the site and refused to perform the handing and taking over. On 25.03.2009 Mr. Narender Sharma vide email on behalf of the plaintiff falsely accused the defendant of suddenly withdrawing the security guards not handing over the charge/possession. The defendant contacted the plaintiff over telephone but plaintiff avoided communication. Vide emails dated 28.03.2009 and 31.03.2009 the defendant clarified the situation. The defendant raised the bill for the March, 2009 which was refused by the plaintiff and no payment was made for the said month. The guards of the defendant were remunerated by the defendant itself in spite of the plaintiff not releasing the payment to the defendant. Legal notice dated 21.04.2009 was sent to the plaintiff despite which the plaintiff failed to release the due payment of Rs. 4,25,993/. The defendant then filed the suit no. 461/09 titled SRT Vs. KRBL in Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 9/22 court of Ld. ADJ. The present suit was a counterblast to the same. The plaintiff had also not released the payments for the site at Sainik Farms and Pamposh Farms. Preliminary objections have also been taken in the written statement. In the parawise reply on merits, it has been denied that the theft of rice on 12.08.2008 occurred due to the negligent act and conspiracy of the security guards of the defendant. The cost of the aforesaid rice being Rs. 4,94,910/ was also denied. It was denied that the said matter was reported to the police on the said date though it was admitted that the said matter had been reported to the defendant on 13.08.2008. It was however denied that any verbal agreement was entered into between the parties whereby the defendant willfully agreed to compensate the lost caused by the theft to the plaintiff. Preliminary submissions have been reiterated.
9. In the reply on merits the defendant states that the plaintiff as per its own calculation had not deducted the alleged penalty from the bills of the defendant at the rate of 100 percent for the first month and 50% for the subsequent month and the alleged deduction had been made unilaterally and arbitrarily by the plaintiff. It is claimed that the original bill for the month of July, 2008 was altered by the plaintiff and similarly for the subsequent month of September and October, 2008 and January 2008 were passed for different amounts than that which were raised and no payment was made for the month Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 10/22 of March, 2009. It is averred that as per clause 2(b) of the agreement between th the parties the bills were to be cleared by the 7 of the succeeding months th without deduction and clearance of the bills for the month July, 2008 after 7 August was in violation of the agreement. The said agreement did not have a penalty clause which could give the plaintiff to right to deduct the amount. It has been denied that there was no complaint demand or request from the defendant till Feb, 2009 for releasing the outstanding payments since telephonic requests had been made. It is denied that the defendant is liable to pay a sum of Rs. 2,48,410/ along with interest claimed and the defendant prays that the suit be dismissed with costs.
Replication
10. Replication has been filed by the plaintiff. It has been stressed that the security provided by the defendant was negligent and not competent to protect the godowns of the plaintiff which resulted in theft and in pursuance to the verbal agreement between the parties the plaintiff did not proceed with the criminal case since the defendant had agreed to compensate for the total loss of Rs. 4,94,910/ in regard to which deductions were started. It is averred that the defendant filed a false case for recovery. It is claimed that the defendant after replacing by force its own security fled the said case for recovery. The contentions raised in the written statement have been denied Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 11/22 and those mentioned in the plaint have been stressed as being correct. Issues
11. On 27.09.2010 the following issues were framed
1. Whether the present suit is maintainable in the present form? OPP
2. Whether on the basis of the plaint allegations plaintiff is entitled for a decree of Rs. 2,48,410/ along with interest as prayed for? OPP
3. Whether there was any valid agreement between the parties under which the defendant is liable to compensate the plaintiff in the event of theft?OPP
4. Whether the present suit is a counterblast for the suit already filed by the defendant for the recovery of Rs. 4,15,993/? OPD
5. Any other relief which the plaintiff may be entitled for? OPP Evidence
12. In evidence plaintiff examined two witnesses Sh. Narender Sharma as PW1 and Sh. Deepak Vishwash as PW2. The defendant in evidence examined Sh. Sumit Anshuman as DW1. The witnesses were subjected to cross examination.
Final Arguments
13. After conclusion of the trial final arguments were addressed by the counsel for the parties.
Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 12/22
14. I have heard the final arguments and scrutinized the court record. Findings
15. My issue wise findings are are as follows Issue No. 1 Whether the present suit is maintainable in the present for? OPP
16. The present suit is one for recovery of damages; the defendant has simply stated in the preliminary objections that the suit is not maintainable, without further elaborating on the same. Whether there is merit in the claim of the plaintiff or not is a distinct matter and the discussion on the merits of the case of the plaintiff shall follow in the discussion of issue no. 2 regarding entitlement of the plaintiff to recovery of the amount sought, but no legal impediment as regards maintainability per se of the suit is disclosed either from the reading of the plaint or the written statement. I hold that the suit is maintainable in the present form. Issue decided in favour of the plaintiff. Issue Nos. 2 and 3 Whether on the basis of the plaint allegations plaintiff is entitled for a decree of Rs. 2,48,410/ along with interest as prayed for? OPP and Whether there was any valid agreement between the parties under which the defendant is liable to compensate the plaintiff in the event of theft?OPP
17. These issues are taken up together being interconnected. The agreement dated 25.06.2008 entered into between the parties is admitted. The plaintiff's case basically is that during the night of 12.08.2008, a theft was Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 13/22 committed in the premises of the plaintiff which occurred due to the negligence and connivance of the security guards provided by the defendant and that it was the defendant who put forth the proposal of deduction of theft amount of Rs. 4,94,910/ from the monthly payment which was to be made by the plaintiff to the defendant which was allegedly clear from the fact that the defendant neither requested nor made any complaint in regard to the deduction of Rs. 2,71,408/ made by plaintiff from July, 2008 till Feb 2009. PW1 and PW2 deposed in their affidavits of evidence that a verbal agreement had been entered into between the parties whereby the defendant agreed to compensate the plaintiff for the loss caused by the gross negligence and conspiracy of the defendant's security guards and security officers. There was and onus on the plaintiff to prove this alleged verbal agreement. Strangely enough, the plaintiff neither in the plaint nor in the affidavits of evidence of its witnesses states who exactly were the representatives of the plaintiff and the defendant who entered into such a verbal agreement and non disclosure of this extremely material fact is fatal to the case of the plaintiff because if the alleged agreement was a verbal agreement then the best evidence that could have been produced by the plaintiff would have been the evidence of the official/ representative of the plaintiff who had entered into the said verbal agreement with the defendant, who could have proved the Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 14/22 existence of any such verbal agreement. Further, the date and place, where such a verbal agreement was entered into between the parties has also not been disclosed by the plaintiff or its witnesses. The onus was on the plaintiff to prove the existence of a valid agreement between the parties to compensate the plaintiff in the event of theft which the plaintiff has not at all been able to discharge.
18. In addition, there is force in the contention of the counsel for defendant that perusal of the deductions made by the plaintiff would show that there was no symmetry in the deductions. If it is assumed that there was actually an agreement between the parties for deduction of 100% of the monthly payment to be made to the defendant the first time, and rest of the amount was to be deducted as 50% of the further monthly payments of the defendant then as the theft occurred on 12.08.2008, as per plaintiff's own case; such a deduction should have started from the month of August, 2008 and not July, 2008. The reason given by the plaintiff in the plaint that before the cheque for July, 2008 could be released, the theft occurred and therefore the same could not be released to the defendant does not inspire confidence, more so when the plaintiff's witnesses have not even chosen to affirm this reason on oath in their affidavits of evidence and such a deduction would in any case, not be in consonance with even the agreement dated 25.06.2008 Ex. PW1/1 wherein Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 15/22 clause 2(b) pertaining to 'Invoicing and Payment' provides as follows " Invoicing shall be done as specified in schedule II. "INNOVISION" shall raise an invoice for the guarding services rendered each month and the same shall be paid by the client by the 7th day of the succeeding month without deduction, as described in schedule II. In case "KRBL" is unable to make any payment within 60 days then "INNOVISION" shall withdraw its manpower from all the locations on the 61st day. If "KRBL" disputes any invoice in the whole or in part it will promptly notify "INNOVISION" of the reason for the dispute and the parties will use their reasonable endeavor to settled the dispute forthwith. However, "KRBL" shall pay the undisputed portion of the impugned invoice in terms of this clause."
19. The plaintiff has not established the existence of any verbal agreement between the parties, and even otherwise, the plaintiff does not mention as to from which month as per the alleged verbal agreement the deductions were to be carried out. Additionally, no deductions have been made by the plaintiff, as per its own chart of details of payments made to defendant, for the months of November and December 2008 and February 2009, and plaintiff cryptically states that the deductions were not made for these aforesaid months merely upon the request of the defendant. This again fortifies my conclusion that there was no verbal agreement between the parties regarding deduction of amount in the first place and the plaintiff has in fact made deductions Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 16/22 arbitrarily, otherwise, regardless of any request of the defendant the plaintiff would have continued to deduct 50% amount from the payments to be made for the months of November & December, 2008 and February, 2009. The witness of defendant DW1 denied the suggestion that initially the defendant agreed to make good the loss of Rs. 4,94,910/ suffered by the plaintiff due to the theft committed on 12.08.2008. Ld. Counsel for the plaintiff argued that between August 2008 to February 2009 there was no communication/objection by the defendant regarding the amount deducted and pointed out that DW1 gave an evasive answer stating that he was not aware whether any letter/e mail had been sent in this period by defendant to plaintiff and he argued that there was an implied contract between the parties. Ld. counsel for plaintiff relied on 'AIR 2013 Delhi 10 titled HDFC Bank Ltd. Vs. Delhi Gymkhana Club Ltd.' in support of his argument of an implied contract being a valid contract wherein in a suit for recovery of advertisement charges, the plea that there was no contract to publish advertisement for the earlier period was held to be untenable as payments for the earlier period had been made and no instructions were filed by the appellant to show it had directed that no advertisement be published further.
20. The reliance on the aforesaid case by the plaintiff is misplaced in the facts of the present case. The plaintiff herein has not established the existence Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 17/22 of the alleged verbal/implied contract at all. The mere fact that no objection was raised between August 2008 to February 2009 by the defendant would not lead to the presumption that there was an implied contract between the parties and deductions were being made in accordance thereto, more so when it is an admitted case that the defendant had already prior to the plaintiff's present suit, filed a suit for recovery of dues against the plaintiff.
21. It is also noteworthy that though Ld. counsel for plaintiff was able to elicit the admission from DW1 that DW1 was aware of the fact of theft having taken pace in the plaintiff company and the General Manager of the plaintiff Sh. Narender Sharma informing him about the same however the real basis of the plaintiff's claim is the purported verbal agreement which plaintiff has not proved, either by producing the official of the plaintiff who entered into the same on behalf of the plaintiff or any persons who witnessed the alleged oral agreement and further plaintiff has not even established that the loss incurred by it due to the theft was Rs. 4,94,910/ or that the theft resulted due to the negligence of the defendant's security personnel or with their connivance. It was correctly pointed out by counsel for defendant that in the FIR Ex. PW2/6 the plaintiff has not implicated any personnel of the defendant, further PW2 deposed in crossexamination that no investigations of the guards was carried out by the plaintiff. PW1 & PW2 testified in their respective crossexaminations Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 18/22 to the effect that the defendant was not asked to jointly investigate the incident of theft though PW2 deposed that defendant was told to investigate its guards.
22. Now, counsel for plaintiff had evinced in crossexamination further DW1 that Ex. PW2/7 bore the signatures of Sh. Dev Kumar who as per the testimony of DW1, was an Operation Manager who used to oversee the site on behalf of the defendant. DW1 deposed that the contents of Ex. PW2/7 were wrong. Defendant has not produced Sh. Dev Kumar in evidence and it is clear that Ex. PW2/7 i.e. letter dated 15.11.2008 addressed to the plaintiff apologizing for allowing the vehicle to leave without gate pass and stating that this occurred due to the guard not being vigilant shows incident when an official of the defendant was not diligent in his duties, however firstly, the real basis of the plaintiff's claim for damages is the purported verbal agreement which plaintiff has failed to prove and secondly, the plaintiff has failed to show any connection between this incident and the plaintiff's claim for damages. Even if the plaintiff was claiming damages solely on the ground of defendant's negligence in guarding the premises, then again, the plaintiff had the duty to prove that the loss incurred or actual damage caused to it was to the tune of Rs. 4,94,910/ but there is documentary evidence on record to show that the plaintiff incurred a loss of Rs. 4,94,910/.
23. Pertinently, in the bills Ex. PW1/3 colly, especially bill no. Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 19/22 INV/DLH/0708/773 wherein there is a noting to the effect that the bills may be debited against the theft and bill No. INV/DLH/0708/777 wherein there is a noting that the 50% amount may be debited against the theft, PW1 admitted that the said exhibit bore his signatures at point 'A' and the alterations at point 'B' on the bills were made by Sh. Deepak, who was also an employee of the defendant. It is noteworthy that apart from these two bills, there is no noting of deduction qua theft in any of the other bills (though deduction of penalty has been made in bills dated 31.01.2009) and apparently, there is no acknowledgment or acceptance in writing by the defendant regarding the deductions. PW1 has not even proved the accounts statement as he deposed that Ex. PW1/2 accounts statement had not been prepared by him and the same had been prepared by the accounts department and he did not deal with the accounts thus the accounts statement has not been proved as per law by the plaintiff.
24. Plaintiff has not proved the basis for claiming the suit amount or established its entitlement thereto. A number of documents of the defendant exhibited as Ex. DW1/3 to Ex. DW1/24 were objected to by the Ld. counsel for the plaintiff on the ground of mode of proof. Even without considering the documents of the defendant or even Ex. PW1/2 statement of accounts since plaintiff's claim is one for damages, the plaintiff's suit does not succeed as Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 20/22 the plaintiff has not established its claim and it is well settled that plaintiff's case must stand on its own legs.
22. In view of the aforesaid discussion, it is held that the plaintiff is not entitled to the relief of recovery of Rs. 2,48,410/ along with any interest. The plaintiff has also not discharged the burden of proving the existence of an agreement between the parties vide which defendant was required to compensate the plaintiff in the event of theft. Issues no. 2 and 3 decided against the plaintiff.
Issue No. 4 Whether the present suit is a counterblast for the suit already filed by the defendant for the recovery of Rs. 4,15,993/? OPD
25. The plaintiff has not established the existence of any oral/implied agreement between the parties vide which it was entitled to deduct any amount from the bills raised by the defendant. The plaintiff has also not established that the loss suffered by it was to the extent of Rs. 4,94,910/ and further that the same was as a result of defendant's negligence. It is admitted by the plaintiff that the defendant filed a suit for recovery of dues regarding payments to guards and PW2 deposed that the defendant filed the suit for recovery against the plaintiff. PW2 further admitted that the defendant filed the suit first. Whether or not the defendant is entitled to recovery of any dues would be for the Ld. court seized of the said case to determine and this court Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 21/22 is only concerned with the issue of entitlement of plaintiff to damages however it is apparent from the facts and circumstances of the case and considering that admittedly defendant first filed its suit for recovery of amount, that the plaintiff's present suit is merely a counterblast to the defendant's said suit and the plaintiff's present suit is without any merits. Issue decided in favour of defendant and against the plaintiff.
Issue No. 5 Any other relief which the plaintiff may be entitled for? OPP
26. In view of the above issuewise discussion, it is held that the plaintiff is not entitled to the relief as claimed or any other relief in the present case. The suit of the plaintiff is dismissed. Parties to bear their own costs.
27. Decree sheet be prepared accordingly.
28. File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 08.10.2013 Civil Judge - 17 (Central)
08.10.2013
Suit No. 16/10 KRBL Ltd. Vs. SRT Innovision Services Pvt. Ltd. 22/22