Delhi District Court
M/S Osheen Interiors vs M/S Western Air-Conditioning & on 1 April, 2023
IN THE COURT OF SH. RAJINDER KUMAR
ADDITIONAL DISTRICT JUDGE-02, NORTH-WEST
ROHINI COURT: DELHI.
CS DJ No.76627/2016
IN THE MATTER OF:
M/S OSHEEN INTERIORS
II-C-73, Lajpat Nagar-II,
New Delhi-110024
Through its Proprietor
Ms. Sunita Singh
Further Through its
Special Power of Attorney
Sh. Ajay Singh.
..........Plaintiff
Versus
1. M/S WESTERN AIR-CONDITIONING &
REFRIGERATION PVT. LTD.
Through its Directors
Shri Harmeet Singh Machre.
2. SH. RAJEEV SHARMA, GENERAL MANAGER
(NORTH)
M/s Western Air-Conditioning & Refrigeration Pvt. Ltd.
Both at:
G-40/2, Lawrence Road Industrial Area,
New Delhi-110035.
Having its Head Office at:
7/B, Pannalal Silk Mills Compound, 78, L. B. S. Marg,
Bhandup (W), Mumbai-400078.
CS DJ No.76627/16
M/s Osheen Interiors Vs.
M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.1 of 15
.........Defendants
Date of Institution : 16.05.2009
Date of Reserving Order : 27.03.2023
Date of Judgment : 01.04.2023
JUDGMENT :-
SUIT FOR RECOVERY OF RS.3,61,337/- AND DAMAGES TO THE TUNE OF RS.1 LAC.
1. This judgment shall decide a suit for recovery of Rs.3,61,337/- and damages to the tune of Rs.1 lac, filed by the plaintiff against defendants.
2. This is pertinent to mention here that defendants have filed counter-claim with the W/S in this case but during the pendency, the same was dismissed as withdrawn vide statement dt. 08.11.12.
3. Brief facts of the case as per the plaintiff are that the plaintiff firm deals in interiors, designers and decorators running its business for the last 8 years. That Ms. Sunita Singh is the proprietor of plaintiff firm and Sh. Ajay Singh is the Special Power of Attorney. That the defendant no.1 is having its Head Office at Mumbai and its CS DJ No.76627/16 M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.2 of 15 branch office at C-99, Maya Puri, Phase-II, New Delhi- 110064. That the defendant no.2 is the General Manager (North), Head of the defendant no.1 at New Delhi office. That the defendants called for turnkey quotations from different bidders in their office and that the plaintiff was the successful bidder and was given the opportunity to carry on the work of designing, decoration, interiors etc. That the defendant no.2 negotiated, amended, modified the drawings and asked the plaintiff to use the existing usage material which the defendants already had with them. That after 2-3 amendments, the new quotation was made of Rs.6,75,205/-. That when the plaintiff started its work, the defendant no.2 kept on increasing the specifications, quantities of items and demanded more and more changes in the work of plaintiff. That the plaintiff completed the work on 29.12.08, which was after the alteration, amendment, etc. That after completion of work, the plaintiff raised total bill dt. 30.12.08 for Rs.8,66,337/- and the same was sent by post on 31.12.08 and during the pendency of the work, the defendants made three payments totaling to Rs.5.05 lacs by leaving balance of Rs.3,61,337/-. That after the completion of work and after the raising of bill, the defendant no.2 started harassing and torturing the plaintiff and stopped the balance payment of the plaintiff. That the plaintiff requested many times to defendants but they failed to make the payment to the plaintiff. That on 05.05.09, SPA of the plaintiff lastly CS DJ No.76627/16 M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.3 of 15 visited the office of defendants at Delhi office but defendant no.2 flatly refused to make balance payment.
4. In the W/S filed by the defendants, certain preliminary objections are taken like that the suit is without any cause of action; that the plaintiff has not approached the court with clean hands and has suppressed the true and material facts. It is also pleaded that the plaintiff was to complete the interior decoration work of the office of the defendants within 28 days from 28.10.09 but till date, the plaintiff has not completed the same. That the defendant has already made payment of Rs.5.05 lacs in three installments. That the plaintiff has completed 20 % of the total work, hence, the defendants have made excess payment of Rs.4.04 lacs. That the final quotation was submitted by the plaintiff for Rs.6,75,205/- but the plaintiff submitted excessive bill of Rs.8,66,337/- with the defendants without even completing the agreed work.
5. Replication was filed by the plaintiff to the W/S filed by the defendants, wherein the pleadings of the defendants were denied.
6. On the basis of pleading of the parties, following issues were framed in this case on 16.05.13, which are as under :-
CS DJ No.76627/16M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.4 of 15
(i) Whether the plaintiff has failed to complete the interior decoration work within a period of 28 days as agreed between the parties? OPD
(ii) Whether the plaintiff has completed only 20 % of the total work as alleged? If so, its effect? OPD
(iii) Whether the plaintiff has already received excess payment of Rs.4,04,000/- from the defendant as claimed by the defendant? OPD
(iv) Whether the final bill of Rs.8,66,337/- as submitted by the plaintiff to the defendant is excessive?OPD
(v) Whether the plaintiff is entitled to money decree? If so, to what amount? OPP
(vi) Whether the plaintiff is entitled to any damages as prayed? If so, to what amount? OPP
(vii) Whether the plaintiff is entitled to any pendente lite and future interest? If so, at what rate and for which period? OPP
(viii) Relief.
7. In support of its case, the plaintiff got examined Sh. Ajay Sing, SPA of Ms. Sunita Singh, Proprietor of M/s Osheen Interiors as PW1. During his examination-in-chief, relied upon various documents i.e. Ex-PW1/1 to Ex-PW1/7 & Ex-PW1/10 and further relied upon document marked as Mark A. PE was closed on 22.02.2018.
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8. The defendants got examined Sh. Pradeep Kumar Sharma, AGM as DW1 in support of their pleadings. During his examination-in-chief, DW-1 relied upon various documents i.e. Ex-DW1/1 & Ex-DW1/2. It is pertinent to mention here that DE was closed on 01.02.2019 but thereafter, pursuant to order dt. 24.04.19, Sh. Pradeep Kumar Sharma (DW-1) was cross-examined on 02.05.22.
9. Issue-wise findings are as under.
Issue no.(i) to (iv) - (i) Whether the plaintiff has failed to complete the interior decoration work within a period of 28 days as agreed between the parties? OPD Issue no.(ii) - Whether the plaintiff has completed only 20 % of the total work as alleged? If so, its effect? OPD Issue no.(iii) - Whether the plaintiff has already received excess payment of Rs.4,04,000/- from the defendant as claimed by the defendant? OPD Issue no.(iv) - Whether the final bill of Rs.8,66,337/- as submitted by the plaintiff to the defendant is excessive? OPD
10. All these issues are inter-connected. Accordingly, for the sake of convenience and to avoid repetition, the issue no.(i) to (iv) are taken up together. The onus to prove the same was put upon the defendants and are based on the CS DJ No.76627/16 M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.6 of 15 pleadings of the defendants. It is pleaded by the defendants that the plaintiff has failed to complete the interior decoration work of the office of defendants within 28 days as agreed. It is also pleaded by the defendants that the plaintiff has completed only 20 % of the total work and that the defendants have made excess payment of Rs. 4,04,000/-. It is also pleaded by the defendants that the plaintiff intentionally submitted the excessive bill of Rs.8,66,337/- to the defendants.
11. In his evidence affidavit, Sh. Pradeep Kumar Sharma (DW1), who is the AGM of the defendant Company, re-iterated and re-affirmed the contents of the W/S filed by the defendants. During his cross-examination, it was deposed by him that payment schedule was there for the work in question. It was volunteered by him that the payment was to be made after the completion of the work. It was also deposed by him that he do not remember the date, on which the work order was assigned to the plaintiff and that he cannot tell exactly as to who had signed on behalf of their Company. It was volunteered by him that it might have been signed by the GM and he can identify his signature if shown to him.
12. It was deposed by him that he was not aware as to the number of quotations, given by the plaintiff as Sh. Rajiv Sharma, GM of the Co., who was dealing with him.
CS DJ No.76627/16M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.7 of 15 It was also deposed by him that it was not settled between the plaintiff and the defendant Co. that the re-usable items were to be used in the new Office at Lawrence Road. It was also deposed by him that he was not aware if the first estimated quotation of Rs.12/- lacs - 12.50/- Lacs approx. was given by the plaintiff and if the second estimated quotation of Rs.8 Lacs plus was also given by the plaintiff. It was volunteered by him that the aspect of quotations was being dealt with by some other official and no extra work was got done in the new office at Lawrence Road. It was also deposed by him that the defendant Co. was involved in the manufacturing and sale-services of commercial refrigerators. It was also deposed by him that he was not aware if the defendant Co. has also gone to Consumer Forum against the plaintiff herein and if the complaint before the Consumer Forum, Qutub Enclave has been dismissed. It was also deposed by him that he had written several letters to the plaintiff besides the document Ex- DW1/2. It was volunteered by him that photographs were also sent to the plaintiff along with letters.
13. Similarly, the witness from the side of the plaintiff i.e. Sh. Ajay Singh (PW1) during his examination-in-chief, re-iterated and re-affirmed the contents of the plaint. During his cross-examination dt. 29.08.14 at page no.2, it was deposed by him that there were two quotations by them, one for Rs.12/- lacs (approx.) and other one was for CS DJ No.76627/16 M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.8 of 15 Rs.6.75/- lacs (approx.) and that there was work order but no specification of amount because it was given after mid of the work. It was admitted to be correct by him that the work has been started without work order and on the assurance of issuance of work order later. During his cross- examination dt. 07.10.15 at page no.1, it was also admitted to be correct by him that his official address is M/s Ocean Interiors, II-C-73, Lajpat Nagar-II, New Delhi-110024.
14. There is no evidence led by the side of defendants to prove that the plaintiff has failed to complete the work within 28 days period as agreed. The pleadings of the defendants are denied by the side of plaintiff in his replication. The defendants have also failed to prove that the plaintiff has completed only 20 % of the total work as the said pleadings of the defendants are duly denied by the side of the plaintiff. Moreover, Sh. Pradeep Kumar Sharma (DW-1) has clearly admitted during his cross-examination at page no.1 itself that the payment schedule was there for the work in question. It was also volunteered by DW-1 that the payment was to be made after the completion of work. As per deposition of DW-1 himself, he is not aware about the date, when the work order was assigned to the plaintiff. The only witness from the side of defendants i.e. Sh. Pradeep Kumar Sharma (DW1) is not aware if the first estimated quotation of Rs.12 lacs - 12.5 lacs approx. was CS DJ No.76627/16 M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.9 of 15 given by the plaintiff and also that if the 2 nd estimated quotation of Rs.8 lacs plus was also given by the plaintiff.
15. In para 4 of the plaint, the plaintiff has pleaded that the first quotation given to the defendants was of Rs.12,11,890/-. In para 7, it is pleaded by the plaintiff that after the completion of work, the plaintiff raised total bill dt.30.12.08 of Rs.8,66,337/-.
It is pertinent to mention here that in the corresponding para of W/S (para wise reply on merits), the defendants have not denied the factum of Ist quotation that it was for Rs.12,11,890/-. The defendants have not denied the factum of raising of total Bill of Rs.8,66,337/- by the plaintiff in the corresponding para of the W/S for the reasons best known to it. Moreover, Sh. Pradeep Kumar Sharma (DW-1) has clearly admitted the factum of raising of Final Bill in the sum of Rs.8,66,337/- in para 4 of the W/S (para wise reply on merits).
16. Nothing has come on record to make the court believe that the plaintiff has already received excess payment of Rs.4.04 lacs from the defendants as there is no such admission on the part of the plaintiff nor any evidence has been led by the side of the defendants. Similarly, there is no admission from the side of the plaintiff nor any evidence has been led by the side of the defendants. Similarly, there is no admission from the side CS DJ No.76627/16 M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.10 of 15 of the plaintiff nor any evidence has been led by the side of the defendants to make the court believe that the final Bill of Rs.8,66,337/- was excessive. Accordingly, in the absence thereof, court cannot presume anything in favour of one person and against the other.
17. The defendants have also failed to prove its pleadings. The defendants have failed to put the suggestions to the witness of the plaintiff i.e. PW-1 qua the issue no.(ii), (iii) and (iv) for the reasons best known to them.
For the sake of arguments if it is presumed that the work done by the plaintiff was incomplete and that excess payment was made to the plaintiff, there is no evidence / material produced or brought on record by the side of defendants regarding the said incomplete work. Nothing has been brought on record to show the value of incomplete or complete work and in the absence thereof, court cannot presume anything.
Hence, on the basis of the pleadings and the deposition led by the parties, especially that of the defendants, it is clear that the witness of the defendants i.e. Sh. Pradeep Kumar Sharma (DW-1) is not aware of several material things, which he was supposed to be well aware of.
CS DJ No.76627/16M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.11 of 15 In view of above, the issue no.(i) to (iv) are decided against the defendants and in favour of the plaintiff.
Issue no.(v) -Whether the plaintiff is entitled to money decree? If so, to what amount? OPP Issue no.(vi) - Whether the plaintiff is entitled to any damages as prayed? If so, to what amount? OPP Issue no.(vii) - Whether the plaintiff is entitled to any pendente lite and future interest? If so, at what rate and for which period? OPP
18. All these issues are inter-connected. Accordingly, for the sake of convenience and to avoid repetition, the issue no.(v) to (vii) are taken up together. The onus to prove the same was put upon the plaintiff.
It is the plea of the plaintiff that the first quotation given by him to the defendants on 05.10.08 of Rs.12,11,890/-. That the defendant no.2 negotiated, amended and modified the drawings. That after 2-3 amendments, new quotation was made of Rs.6,75,205/-. It is also the plea taken by the plaintiff that he completed the work on 29.12.08 and that after the completion of work, he raised total bill for Rs.8,66,337/- dt. 30.12.08. It is also the plea of the plaintiff that the said original bill was sent to the defendants by post on 31.12.08. That CS DJ No.76627/16 M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.12 of 15 the defendants have paid Rs.5.05 lacs leaving balance of Rs.3,61,337/-.
It is the plea taken by the defendants that the plaintiff has failed to complete the interior decoration work of the office of the defendants within 28 days from 28.10.09 as agreed but till date. It is also the plea of the defendants that the plaintiff has completed 20 % of the total work and that the plaintiff submitted the excessive bill of Rs.8,66,337/- to them.
19. In para 4 of plaint, it is pleaded by the plaintiff specifically that after 2-3 amendments, the new quotation was made of Rs.6,75,205/-. In the corresponding para of W/S (para wise reply on merits), same is not admitted by the defendants. In para 7 of the plaint, the plaintiff has pleaded specifically that the original bill dt. 30.12.08 was sent by post on 31.12.08 and that when the work was in progress, the defendants have made three payments of Rs.5.05 lacs total leaving behind Rs.3,61,337/-. In the corresponding para of the W/S, the said pleadings of the plaintiff are not denied by the defendants. The defendants have also failed to deny specifically the contents of para 9 & 10 of the plaint in the corresponding paras of W/S for the reasons best known to them.
CS DJ No.76627/16M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.13 of 15
20. So far as the issue of damages is concerned, it is pleaded by the plaintiff in para 10 of the plaint that in February, 2009, he got some other work but he failed to do it because of deficiency of money, which was due to non- payment by the defendants and that if he had done that work, he would have earned at least Rs.1 lac as profit.
In the corresponding para of the W/S, the said pleadings of the plaintiff are not denied specifically by the side of defendants, which amounts an admission on their part.
The plaintiff in the present case has prayed for interest @ 18% per annum, which seems to be too high. Accordingly, I consider it reasonable to allow simple interest @ 6% per annum.
Hence, on the basis of the pleadings and the material available on record and the evidence led by the parties, the issue no (v) to (vii) are decided in favour of the plaintiff and against the defendants.
RELIEF :
21. In the light of findings on the issues no.(i) to (vii) (supra), the plaintiff is found entitled to the following reliefs:-
(i) Decree for a sum of Rs.3,61,337/- alongwith interest @ 6 % p.a. from the date of filing of the suit till its realization.CS DJ No.76627/16
M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.14 of 15
(ii) Decree for damages of Rs.1 lac alongwith interest @ 6 % p.a. from the date of filing till its realization.
(iii) Costs of the suit.
Decree-sheet be prepared accordingly.
Announced in the Open Court on 01st of April, 2023.
Digitally signed by RAJINDER RAJINDER KUMAR
KUMAR Date: 2023.04.01
15:54:48 +0530
(RAJINDER KUMAR)
Additional District Judge-2 (North-West) Rohini Courts: Delhi CS DJ No.76627/16 M/s Osheen Interiors Vs. M/s Western Air-Conditioning & Refrigeration Pvt. Ltd. & Anr. Page no.15 of 15