Delhi District Court
Parvinder Singh vs Imperia Structures Limited on 31 August, 2024
IN THE COURT OF SH. AJAY KUMAR JAIN:
DISTRICT JUDGE COMMERCIAL COURT 03 - SOUTH EAST
DISTRICT SAKET COURTS, NEW DELHI.
CS (COMM) 238/2019
PARVINDER SINGH
Proprietor M/s Sant Electricals,
G-144, Naraina Vihar
New Delhi- 110028 ..... PLAINTIFF
VERSUS
IMPERIA STRUCTURES LIMITED
Through its Directors,
A-25, Mohan Co-operative Industrial Estate
New Delhi - 110044 .....DEFENDANT
Date of Institution : 17.08.2019
Date when final arguments heard : 16.08.2024
Date of Judgment : 31.08.2024
JUDGMENT
1. Vide this judgment, I shall decide the present suit for recovery of amount of Rs. 25,86,113/- along with interest @ 18% per annum, and also future and pendente lite interest filed by the plaintiff against the defendant.
CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 1/ 23
2. Brief facts of the case as per plaint that the plaintiff is a proprietor of M/s Sant Electricals engaged in the business of electrification in the building and other electrical related work including power back up system etc. The defendant is in the business of building construction work having office at Mohan Co-operative Industrial Estate approached the plaintiff for some electrical work at defendant's site in Noida, accordingly a letter of intent dt. 14.09.2015 was issued pursuant to the quotation given by the plaintiff. The work specified in the letter of intent was awarded to the plaintiff, which was agreed to be completed within six months from the date of advance received by the plaintiff.
3. The plaintiff was paid Rs. 7.5 Lacs by the defendant pursuant to the work order thereafter the plaintiff commenced the execution of awarded work by deploying his manpower, plant, machinery, equipment and material etc. During execution of work, the plaintiff had experienced right of way (ROW) and other issues for further smooth execution of work at the site because of non- performance of the obligations on the part of other contractor and the defendant. The defendant was apprised all the problem who always assured the plaintiff to resolve the same but of no avail.
4. The plaintiff as per the contract issued bill bearing invoice no. 141 dt. 09.02.2016 for a sum of Rs. 33,36,113/- for the part work executed for the defendant in term of letter of intent out of which he had already received Rs. 7.5 Lacs as token money, thus, total CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 2/ 23 money of Rs. 25,86,113/- is still and payable by the defendant alongwith interest @ 18% per annum from the date of due.
5. The plaintiff continued to perform his obligations despite non-payment of his dues by the defendant till 08.02.2016 when the contract was unilaterally and surreptitiously terminated by the defendant without assigning any cogent reasons. The plaintiff immediately responded to the letter of termination and explains the situation vide email dt. 08.02.2016 and 09.02.2016. The plaintiff also wrote numerous emails and made various phone calls for verification and payment of his bill but no result, however, pursuant to meeting with the defendant's official Mr. Narendra, the plaintiff issued final bill vide email dt. 18.04.2016. The defednant sent an email dt. 05.07.2016 attaching the verified bill of the plaintiff whereby the plaintiff found that the defendant made illegal and exorbitant deductions on fictitious grounds, and verified an amount of Rs. 8,34,267/- only against the plaintiff's bill dt. 09.02.2016 for an amount of Rs. 33,36,113/-. The entire deductions made by the defendant is patently illegal and plaintiff is entitled to receive an amount of Rs. 25,86,113/- together with interest @ 18% per annum from 08.02.2016 till the date of actual realization of the same.
6. The termination of work order/ letter of intent was also illegal and against the terms and conditions agreed upon between the parties due to which, plaintiff suffered huge loss. The plaintiff sent a legal notice dt. 23.02.2018 and despite service of legal notice, no CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 3/ 23 payment is made and even no reply given by the defendant, therefore, the plaintiff filed the present suit with following relief :
a) Pass a decree for recovery of Rs. 25,86,113/- alongwith interest @ 18% p.a. in favour of the plaintiff and against the defendant;
b) Award interest @ 18% per annum on the decreetal amount as pendentelite and future interest from the date of filing the instant suit till the date of actual realisation of the decreed amount;
c) Pass an order and quantify the damages in view of the fact and circumstances of the present case, the plaintiff undertakes to pay the court fees, as this Hon'ble Court adjudicate as damages payable to the plaintiff at the time of final adjudication.
Written Statement :
7. In written statement, it is stated by the defendant that the defendant company awarded the work order dt. 10.09.2015 to the plaintiff. The LOI entered into between the plaintiff and defendant qua the work to be executed was terminated since the defendant halted development of the project. The LOI dt. 14.09.2015 was executed for work at project 'Cyber IT', accordingly, the defendant advanced a sum of Rs. 7,05,000/-, however, plaintiff failed to render any services in pursuance of LOI dt. 14.09.2015.
8. The total contract price for the work as per LOI dt. 14.09.2015 was Rs. 2,95,30,990/-, out of which, the advance amount of Rs. 7,05,000/- was given to the plaintiff. The work is to be completed within 6 months, however, plaintiff concealed that an CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 4/ 23 amount of Rs. 83,476/- was to be adjusted towards the advance amount of Rs. 7,05,000/-. The defendant time and again called upon the plaintiff to abide and adhere the terms and conditions as stipulated in the LOI dt. 14.09.2015 but plaintiff failed to provide any services in terms of LOI. The time is essence of the contract. The defendant, on the other hand, owes an amount of Rs. 6,21,524/- from the plaintiff from the LOI which was eventually terminated due to inability and inefficiency of the plaintiff.
9. In parawise reply, it is stated that the plaintiff never carried any work nor adhered the terms and conditions of LOI due to which the respondent suffered huge issues. The defendant denied that the plaintiff raised any bill and the defendant did not owe any money and the claim of the plaintiff was absolutely false and bogus. The bills attached are dated post the termination. It is also denied that prior to the termination of work order, the plaintiff executed the work worth of Rs. 33,36,113/-. It is also denied that the plaintiff wrote any emails dt. 08.02.2016 and 09.02.2016. The plaintiff, on the other hand, is liable to pay an amount of Rs. 6,21,524/- as well as damages to the defendant.
Replication :
10. In replication, it is stated by the plaintiff that one order dt. 10.09.2015 is for the execution of work at project Aruviya Residency whereas the LOI dt. 14.09.2015 is for execution of work at Knowledge Park, Noida and both the work orders are one single CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 5/ 23 transaction but abovesaid two LOIs were executed between the parties for the work to be executed at different sites independently. The terms and conditions and scope of work in these two LOIs were different and cannot be treated as single transaction. These two LOIs gave rise two different cause of action against the defendant and, therefore, the plaintiff has instituted two different suits for recovery of money out of which other is pending in the court of Ld. ADJ, South-East, Saket, New Delhi. Admittedly, the LOI dt. 10.09.2015 issued in respect of execution of work at project of the defendant Aruviya Residency was terminated by the defendant willfully and illegally, and the LOI dt. 10.09.2015 arbitrarily, surreptitiously and unilaterally even at very initial stage. The defendant had instructed the plaintiff to stop further execution of awarded work on the pretext that the defendant company was not inclined to continue with the construction of said project. It is stated that after due deliberations and discussions between the parties in another LOI bearing no. ISL/IT Tower/ Cyber/ Electrical/ 09 dt. 14.09.2015 was executed for execution of electrical works at another project of defendant known as Cyber-IT. The said LOI dt. 14.09.2015 was awarded prior to termination of the fresh LOI dt. 10.09.2015. The defendant had advanced an amount of Rs. 7,05,000/- towards execution of work in terms of LOI dt. 14.09.2015 for which the plaintiff has already executed the work, and an amount of Rs.
3,21,053/- is still recoverable including interest from the defendant for which the suit bearing no. CS DJ No. 216/2019 is pending CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 6/ 23 adjudication. The plaintiff denied any loss or damages to the defendant, however, stated instead of plaintiff suffered loss, the plaintiff experienced lack of right to way during execution of work from time to time and the defendant took no step to remove the said hurdles, and LOI dt. 14.09.2015 was unilaterally and surreptitiously terminated by the defendant without any reason. The LOI dt. 10.09.2015 and 14.09.2015 are two different and separate LOIs. The total contract value for the work as stipulated in the LOI dt. 14.09.2015 was Rs. 2,95,30,990/-. The alleged amount of Rs. 83,476/- was liable to be adjusted towards LOI dt. 14.09.2015. The plaintiff also denied that amount of Rs. 6,21,524/- was paid as an advance payment in terms of LOI dt. 14.09.2015.
11. In parawise reply, it is stated that plaintiff always vigilant in performance of obligations on his part and started execution of assigned work in terms of LOI but the defendant illegally terminated the LOI dt. 14.09.2015. The plaintiff denied that it was ever agreed and understood between the parties that in terms of LOI dt. 14.09.2015 Rs. 83,476/- was to be adjusted against the amount of Rs. 7,05,000/- as advance by the defendant towards subsequent LOI. The claim of the plaintiff is based on duly verified bills by the defendant and aforesaid bills were prepared proportionate to the execution of actual works. The legal notice dt. 28.02.2019 was duly served which is clear from the print out of the tracking report and this court has territorial jurisdiction to try the present suit.
CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 7/ 23
12. On completion of pleadings, vide order dt. 18.04.2023, following issues were framed :
1. Whether the plaintiff is entitled for decree of recovery of Rs. 25,86,113/- from the defendant, as prayed for? OPP
2. Whether the plaintiff is entitled for interest on the due amount. If yes, at what rate and from which period? OPP
3. Relief
14. The matter was referred to Local Commissioner for recording of evidence.
15. Plaintiff examined PW1 Parvinder Singh, proprietor and defendant examined DW1 Manish Gupta.
BRIEF SUMMARY OF EVIDENCE :
16. PW1 Parvinder Singh tendered his affidavit in evidence as Ex.PW1/1 and in cross examination stated that he has not mentioned about the work order dt. 10.09.2015 in the present case as the separate suit is pending regarding the said work order. He further stated that he received two payment from the date of commencement of dealing between the parties. The payment of Rs. 7.5 Lacs on one occasion and Rs. One Lac on the second occasion. The work could not be completed within 6 months as due to non-payment by defendant, non-availability of work fronts and frequently revised drawings by defendant company. In this regard, he has sent various emails and CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 8/ 23 telephonic conversation but not written any letter. He has placed on record the said emails alongwith plaint. The defendant company terminated the work order dt. 08.02.2016 as they did not want to release the payment. He raised the bill between 14.09.2015 to 08.02.2016, however, the bills were not provided for payment due to the reason of releasing adhoc payments against the bills as mentioned in emails. He stated that it is correct that neither the above fact of raising of bills between 14.09.2015 to 08.02.2016 has been pleaded in the plaint nor placed on record. He further stated that despite assurance, no adhoc payment was given by the defendant during the period 14.09.2015 to 08.02.2016. PW1 stated that email dt. 08.02.2016 (Ex.P-3 (Colly) showing mentioning of adhoc payment, however, he do not remember whether it was written after the termination of contract. Again stated, it might be correct. He denied suggestions that he had given the reasons of delay after termination of contract on 08.02.2016. PW1 further stated that in email dt. 17.11.2015, the reasons for delay were given, however, these were not found mentioned in email dt. 17.11.2015. He stated that it is correct that the payment is to be made after certification of bill raised by the plaintiff. He stated that he do not remember on which date the bill in question was raised. He further stated that he do not remember how many times he submitted the said bill. He denied suggestion that defendant company did not issue any certification on the bill raised, however, stated he do not remember when the said certification of the CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 9/ 23 bill is given. He stated that the bill is raised from Delhi office against the registration number of Delhi, however, the said bill is not included in the sales tax return.
17. He stated that the details of the goods sold and services provided were given in the annexures to the bill. He stated that it is correct that bill at page 70 is incapable to decipher as for what amount of supply has been made. The annexures to the bill were at page 71 to
77. He denied suggestion that the bill dt. 09.02.2016 was firstly submitted to the defendant company on 10.02.2016, however, stated that it was submitted in the end of January, 2016. He stated that he had not submitted the revised bill on 13.04.2016 and also stated that he did not submit any revised bill. He was confronted with the email dt. 18.04.2016 where it was mentioned that final revised bill has been submitted on the basis of discussion between the representative of the parties to which this witness stated that it is incorrect and that discussion was regarding the format of the verification bill. He stated that he received the email dt. 05.07.2016. He stated that he has not traced on record abstract and A/R of conduit items as mentioned in the email dt. 05.07.2016. He also stated that he disputed the abstract and A/R of conduit item as conveyed by the Project Engineer vide email dt. 05.07.2016 as it was subject to the clearance of the payment of Gupta Associates, however, it is not the part of the plaint or replication. He stated that it is correct that the amount in the said report is Rs. 7,84,955/74p. He also stated that he cannot tell whether CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 10/ 23 the annexure to the bill in question dt. 09.02.2016 showing the less amount. He did not pay any service tax on the bill. He cannot produce the sales tax return. He also stated that there is no agreement of consensus on the point of interest and the entire claim is on the basis of bill dt. 09.02.2016. He stated that it is incorrect that the suit is barred by limitation. He denied suggestion that plaintiff failed in giving due credit and the adjustment of the payment made by defendant and liable to refund the excess amount.
18. DW1 Manish Gupta tendered his affidavit in evidence as Ex.DW1/A and in cross examination stated that registered address of the company was A-85, Mohan Co-operative Industrial Estate, New Delhi in the year 2018-19. He stated that he is not aware of the exact reason for suspension of work order dt. 10.09.2015. He also stated that the plaintiff did not raise any bill in respect of the work executed in terms of work order dt. 10.09.2015. He also stated that he has not mentioned the factum of payment of Rs. 7.5 Lacs and Rs. One Lac in the written statement, however, stated that it is the matter of record.
He further stated that the bill dt. 09.02.2016 was issued at the correct address and it is also correct that the said bill was not verified, again stated that it was verified but could not identify from record how much amount of bill was passed after verification. He stated that it is correct that plaintiff disputed for verification through email dt. 06.07.2016 (part of Ex.P-4). The verified amount is Rs. 5,75,240/-. He do not remember whether they had adjusted the payment made to CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 11/ 23 Gupta Associates. He stated that he had not replied to email dt. 06.07.2016. It is correct that the email dt. 17.11.2015 was not regarding delay but relating to comply with the contract conditions and timelines, however, they had paid initially Rs. 8.5 Lacs as an advance. He denied suggestion that after adjustment of advance amount, the defendant company is liable to pay Rs. 25,86,113/- as on 09.02.2016.
MATERIAL EXHIBITS :
19. Ex.P-1 (pg. no. 14 to 47) is the original letter of intent dt. 14.09.2015; Ex.P-2 (pg. 69 to 99) is the invoice dt. 09.02.2016; Ex.P- 3 (Colly)(pg. no. 48 to 68) are the print out of emails dt. 16.11.2015, 17.11.2015, 08.02.2016, 09.02.2016 & 23.02.2016; Ex.P-4 (Colly)(pg. no. 100 to 116) are the print out of emails dt. 01.03.2016, 02.04.2016, 03.04.2016, 06.04.2016, 18.04.2016, 05.07.2016 and 09.04.2017;
Ex.PW1/A is the legal notice dt. 23.02.2019; Ex.PW1/B is the postal receipt dt. 27.07.20219; Ex.PW1/C is the tracking report of legal notice dt. 23.02.2019; Ex.PW1/D is the affidavit/ certificate U/s 65B of Indian Evidence Act.
Ex.DW1/1 is the copy of Board Resolution dt.
15.09.2022; Ex.DW1/2 (pg. no. 37 to 40) is the copy of letter of intent dt. 10.09.2015; Mark A is the copy of work order dt. 14.09.2015; Ex.DW1/3 (pg. no. 20 to 23) is the copy of letter of intent dt. 14.09.2015; Ex.DW1/4 (Colly) (internal pg. no. 24 to 28) is the copies of bills of quantities for electrical work and list of approved CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 12/ 23 makes for internal electricity work; Ex.DW1/5 (Colly)(internal page no. 29 to 36 & 56 to 58 i.e. 11 pages) is the copy of bills of quantities for installation, testing and commissioning of electrical work alongwith list of approved makes of material.
SUBMISSIONS OF THE COUNSELS :
20. Ld. Counsel for plaintiff submitted that the defendant has admitted the documents in affidavit of admission denial of documents i.e. work order/ LOI dt. 14.09.2015, invoice/ bill dt. 09.02.2016 and all emails exchanged between the parties. Ld. Counsel submitted that the plaintiff received the advance amount of Rs. 7.5 Lacs, however, there is delay in start of execution of work because delay in approving drawing, approving vendor and material to purchase, non-availability of space for work and changes in the scope of work. The plaintiff however performing his part and carrying out the assigned work, however, on 08.02.2016 the defendant illegally without any reason terminated the contract but the plaintiff not accepted the said termination and kept continuing the execution of awarded work. The plaintiff failed to pay any running account bill who again raised invoice/ bill on 09.02.2016 proportionate to the executed work which is still unpaid.
21. Ld. Counsel submitted that DW1 Manish Gupta in cross examination stated that he has no personal knowledge of the case, therefore, his testimony cannot be accepted. The defendant pleaded that the plaintiff has not executed any work because of which he CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 13/ 23 sustained immense loss and also reserve claim of damages from plaintiff, however, not quantified any loss on the basis of any document nor filed any counter claim. The plaintiff also entitled interest @ 18% per annum.
22. Ld. Counsel for the defendant, on the other hand, submitted that the present suit is barred by limitation as the invoice dt. 09.02.2016 on the basis of which claim is made is time barred as the suit is filed on 16.09.2019 after three years from cause of action. The plaintiff relied upon the email dt. 05.07.2016 to keep the claim within limitation, however, the verified work was done by the plaintiff is for Rs. 7,84,955/74p and the said verification is not challenged by the plaintiff, therefore, the plaintiff is not entitled to any extension of limitation.
23. The claim of the plaintiff on the basis of invoice dt. 09.02.2016 as per his own pleadings was modified as per email dt. 02.06.2016, and further as per email dt. 18.04.2016, the revised and modified final bill was submitted, however, the revised and modified bill has not produced or placed on record. The invoice dt. 09.02.2016 is neither the revised nor modified invoice, therefore, the plaintiff is not entitled to seek any recovery of said invoice dt. 09.02.2016. The invoice raised is also not in terms of Section 50 (e) of Value Added Tax Act, 2004. The invoice dt. 09.02.2016 is even contrary to the annexure mentioned to the said bill which calculates around Rs.
22,47,473/24p. Ld. Counsel submitted that PW1 in cross examination CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 14/ 23 stated that he had received Rs. 8.5 Lacs from the plaintiff and as per the verified amount of the defendant, the plaintiff has done the work of Rs. 7,84,955/-, therefore, the plaintiff has already received the excess payment. Plaintiff accepted vide email dt. 09.04.2017 the said verification. Ld. Counsel submitted that the plaintiff is not entitled to any claim.
24. Ld. Counsel submitted that the specific details were not provided in the bill dt. 09.02.2016, furthermore, the bill was not approved by the defendant as per work order/ LOI. The bill also do not mention the admitted advance payment of Rs. 7.5 Lacs and Rs. One Lac, therefore, the bill appears to be bogus. The plaintiff even not raised any bill between 14.09.2015 to 08.02.2016. The defendant categorically raised the delay in the progress of work vide email dt. 16.09.2015. Ld. Counsel submitted that the bill dt. 09.02.2016 is incapable in showing what amount of supply has been made, what amount has been installed and what amount of testing and commissioning has been done. The said bill was submitted after termination of contract vide email dt. 08.02.2016,. The plaintiff submitted the final bill dt. 18.04.2016 which was never verified by the defendant. The plaintiff also not filed the complete emails exchanged between the parties. The plaintiff also not deposited the service tax. Ld. Counsel submitted that the plaintiff fails to prove its case, hence, the suit is liable to be dismissed.
25. Both the counsels also filed written submissions.
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26. Arguments heard. Record perused.
27. My issue wise findings are as under :
Issue No. 1 : Whether the plaintiff is entitled for decree of recovery of Rs. 25,86,113/- from the defendant, as prayed for? OPP AND Issue No. 2. Whether the plaintiff is entitled for interest on the due amount. If yes, at what rate and from which period? OPP Brief background facts that the defendant had issued two LOIs dt. 10.09.2015 and 14.09.2015 for execution of the work at two different sites to the plaintiff. The present case relates to the LOI dt. 14.09.2015. The LOI dt. 10.09.2015 was also terminated and the dispute over the payment in the said LOI is pending adjudication in the Court of Ld. ADJ, South-East. Saket, New Delhi. Admittedly, the present LOI dt. 14.09.2015 was terminated by the defendant vide email dt. 08.02.2016, pursuant to which, the plaintiff issued the bill dt. 09.02.2016 (Ex.P-2) for the payment for the work already performed.
However, the said bill was disputed, and as per the case of the plaintiff, the plaintiff made number of calls to the defendant for verification pursuant to which the meeting held between the defendant's official and the plaintiff on 13.04.2016, thereafter the plaintiff submitted the final bill dt. 18.04.2016. It is to be noted that the present case of plaintiff is for payment in terms of bill dt. 09.02.2016, however, subsequent to this, it is the own admission of CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 16/ 23 the plaintiff that he had submitted the final bill dt. 18.04.2016 but the plaintiff has not placed on record the said bill.
28. As per the case of the plaintiff, the defendant sent the email dt. 05.07.2016 (part of Ex.P-4). As per this email, defendant sent the attached verified bill. The verified bill, as per the defendant, is for a sum of Rs. 7,84,955/74p, however, the plaintiff pleaded that there is fictitious deductions made and the plaintiff verified an amount of Rs. 8,34,267/- only against the plaintiff bill dt. 09.02.2016 for an amount of Rs. 33,36,113/-. The case pleaded by the plaintiff as well as deposed by PW1 in his affidavit of evidence that the verified bill annexed with the email dt. 05.07.2016 is not correct and the defendant made an illegal exorbitant deductions, however, not tried to mention any document regarding these avernments in the pleadings as well as affidavit of evidence. The plaintiff has annexed an email dt. 06.07.2016 (Part of Ex.P-4) in reply to the email dt. 05.07.2016 and raised the objection to add the taxes on installation and supply part and also confirm the payments released to Gupta Associates for the bills of payable and the amount being debited from their bill.
29. This reply email dt. 06.07.2016 suggests that the defendant objected the final abstract and A/R of conduit items on the ground that the defendant not added on the taxes part in installation and supply, and also confirm the release of payment to Gupta Associates. However, the reasons mentioned in email dt. 06.07.2016 are not of illegal deductions as raised in the pleading and affidavit of CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 17/ 23 evidence. The grounds of objection in para 10 of the plaint over email dt. 05.07.2016 is only illegal and exorbitant deductions, whereas infact in reply dt. 06.07.2016 raised the request of addition of taxes and confirmation of payment to Gupta Associates. There is nothing in the pleadings in affidavit of evidence regarding quantum of taxes or the payment to be made to Gupta Associates. The plaintiff not explained whether infact the payment is made to Gupta Associates or not. Plaintiff also not pleaded that he has to make the payment to Gupta Associates because it is not paid by the defendant. The plaintiff also not lead any evidence in this regard.
30. Now, it is pertinent to refer the cross examination of the plaintiff, PW1 in cross examination stated that he had received the email dt. 05.07.2016 but could not trace the abstract and A/R of conduit item as conveyed by the Project Engineer of the defendant vide email dt. 05.07.2016, however, stated that it is correct that as per said email, the amount submitted by the Project Engineer of the defendant was Rs. 7,84,955/74p though the same was objected. It is reiterated that the objections is through email dt. 06.07.2016 in which the plaintiff only raised objection over the taxes part as well as the query over the payments made to Gupta Associates. There is no other objection raised by the plaintiff to the amount of Rs. 7,84,955/74p verified by the defendant. The plaintiff is also obliged to place on record the abstract and A/R of conduit item annexure which is part of the email dt. 05.07.2016 relied upon by the plaintiff. However, the CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 18/ 23 plaintiff had not placed the said abstract and A/R and in cross examination, categorically stated that he has not placed on record any such document but this witness is confronted with the documents (page no. 109 to 115) on record which are part of Ex.P-4 annexed with the email dt. 05.07.2016 (at page no. 108) and asked that these documents (Page no. 108 to 115) are abstract and A/R of conduit items, however, PW1 replied evasively and stated that he is not in a position to identify the documents in absence of incomplete email including of attachments. The said email dt. 05.07.2016 is filed by the plaintiff himself at page 108 alongwith the documents from page 109 to 115 which appears the abstract and A/R of conduit items but the plaintiff is denying the same without explaining that what are these documents i.e. page no. 109 to 115 filed by the plaintiff himself and relied upon the plaintiff himself in evidence. The page no. 115 categorically shows the bill amount to be paid is Rs. 7,84,955/74p by the defendant. It is pertinent to mention again that this document i.e. email dt. 05.07.2016, reply to this email dt. 06.07.2016 and the annexures, are from page no. 108 to 115. The reply dt. 06.07.2016 to email dt. 05.07.2016 only talks about the adding of taxes and payment to Gupta Associates and nothing else.
31. Now, it is pertinent to look at the bill dt. 09.02.2016 [Ex.P-2 (Colly from page no. 69, 70 to 99] which is in question and on the basis of which the plaintiff is substantiating his case. The said bill is at page 70 showing the total amount of Rs. 33,36,113/80p, however, CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 19/ 23 the annexures corroborating the same from page no. 71 to 99 do not corroborate the said amount. PW1 in cross examination stated that he cannot tell whether the annexure to the bill dt. 09.02.2016 shows the lessor amount. The plaintiff unable to explain the bill dt. 09.02.2016 alongwith the documents which is necessary to arrive at the figure of Rs. 33,36,113/- as mentioned in the bill in question.
32. Now, it is pertinent to see the forwarding letter of the said bill (at page 69) showing that this bill is enclosed for verification. This itself suggests that this is not the final bill and this fact is also corroborated through the plaint as well as affidavit of evidence. The plaintiff stated that after this bill dt. 09.02.2016 he had submitted the bill dt. 18.04.2016 after discussion with defendant's official on 13.04.2016, however, the said bill dt. 18.04.2016 is not filed nor exhibited by the plaintiff. The plaintiff stated that the defendant verified the bill to the tune of Rs. 8,34,267/- but even the said verified amount is not exhibited on record. The plaintiff unable to substantiate the bill dt. 09.02.2016 on the basis of which he is claiming the amount in the present case through his own pleadings and communications relied upon.
33. PW1 in cross examination denied suggestion that the bill dt. 09.02.2016 was submitted to the defendant's company on 10.02.2016, whereas the Ex.P-2 on page 69 relied upon by the plaintiff suggests that it was received by the representative of the defendant on 10.02.2016. This witness, on the other hand, raised the CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 20/ 23 plea in cross examination that this bill dt. 09.02.2016 is submitted in the end of January, 2016. It appears improbable that the bill dt. 09.02.2016 could be submitted in January, 2016. The background of this plea should appreciated from the fact that the defendant terminated the LOI dt. 14.09.2015 on 08.02.2016, however, he also stated in cross examination that he had written the email dt. 08.02.2016 prior to the termination email dt. 08.02.2016 of the defendant but the emails attached at page no. 61 dt. 08.02.2016 relied by the plaintiff shows (part of Ex.P-2) that the plaintiff sent the email dt. 08.02.2016 after receiving the termination email dt. 08.02.2016 from the defendant. Admittedly, as per cross examination of PW1, no bill was sent between the date of LOI i.e. from 14.09.2015 till 08.02.2016. The first bill raised is of 09.02.2016, this fact itself suggests that this bill was raised in hurry as the contract was terminated by the defendant on 08.02.2016.
34. The defendant took the plea that the defendant terminated the contract as the plaintiff did not do any work, however, the plaintiff took the plea that the reasons for delay were communicated by PW1 vide email dt. 17.11.2015. PW1 in cross examination stated that he has given the reasons for delay prior to 08.02.2016 in this regard he was confronted with email dt. 17.11.2015 (part of Ex.P-3 at page 48) where there is nothing mentioned about the complaint of delay by plaintiff on the part of the defendant. PW1 in his cross examination stated that it is correct that certification is required by the defendant CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 21/ 23 over the bill raised by the plaintiff, however, also denied suggestion that defendant company do not issue any certification of the bill raised but could not show any certification regarding the bill dt. 09.02.2016.
35. The defendant raised the plea that defendant terminated the contract/ LOI dt. 14.09.2015 on 08.02.2016 as the plaintiff did not do any work, however, also vide email dt. 05.07.2016 sent a verification that the plaintiff is entitled for a payment of Rs. 7,84,955/-. The defendant is also not disclosing the true transactions, however, the burden is upon the plaintiff to prove his case. The plaintiff cannot prove his case merely on the basis of conduct and weakness of defense of defendant.
36. The plaintiff during pleadings raised the plea that he has received an advance money of Rs. 7.5 Lacs at the time of execution of contract and claiming Rs. 25,86,113/- after deducting Rs. 7.5 Lacs from the total amount of Rs. 33,36,113/- of bill dt. 09.02.2016. However, during cross examination stated that he has received the token money paid by the defendant to the tune of Rs. 8.5 Lacs comprising of Rs. 7.5 Lacs and Rs. One Lac. The plaintiff has not disclosed the receiving of said Rs. One Lac in his pleadings. Both the plaintiff and defendant are somehow concealing the real transactions.
37. The plaintiff has to stand on its own leg to prove his case and has to place the cogent evidence on record to substantiate his case. It is also settled law that in absence of any pleading, the evidence produced by any party cannot be considered and no party can travel CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 22/ 23 beyond its pleadings. The plaintiff is relying upon the bill dt. 09.02.2016 for claiming the relief of Rs. 25,86,113/-, however, as discussed the plaintiff not able to prove the said liability. The defendant is also raising the plea of excess amount paid, however, no counter claim is filed by the defendant. Accordingly, the issue nos. 1 & 2 are decided in favour of the defendant and against the plaintiff. RELIEF
38. In view of the above discussions, plaintiff is not entitled to any relief. Hence, the present suit stands dismissed. The present suit is disposed off accordingly.
File be consigned to record room after due compliance.
Digitally AJAY signed by AJAY KUMAR JAIN KUMAR Date:
2024.08.31 JAIN 16:25:58 +0530 Announced in the open court on 31st August, 2024 (Ajay Kumar Jain) District Judge, Comm-03 South-East, Saket Courts, CS (COMM) 238/2019 Parvinder Singh Vs. Imperia Structure dt. 31.08.2024 23/ 23