Delhi District Court
Also C/O vs M/S Punj Lloyd Ltd on 3 November, 2010
1
IN THE COURT OF SHRI RAJNEESH KUMAR GUPTA, ADDITIONAL DISTRICT
JUDGE-08 (CENTRAL), TIS HAZARI, DELHI
Suit No. 108/05
Unique case ID No. 02401C0879832005
Shri Satish Kumar
Prop. M/s Kapil Enterprises
102-B, Sun Flower Apartments
Tithal Road Valsad-396001
Also C/o :
WZ-1873, Rani Bagh,
Delhi
...........Plaintiff
Vs.
M/s Punj Lloyd Ltd.
Regd. & Corporate Office
Punj Lloyd House,
17-18, Nehru Place,
New Delhi-110019.
...........Defendant
Date of institution of the suit : 27.9.05
Date of arguments : 23.10.10
Date of the Judgment : 03.11.10
JUDGMENT
1. The present suit is for recovery of Rs. 19,99,996/-.
2. In brief the case of the plaintiff as made out in the plaint is that plaintiff is engaged in the business of construction of buildings, roads, laying pipelines etc. The defendant is engaged in the business of obtaining contracts & further outsourcing them to Suit No. 108/05 Page 1 of 7 2 the local contractors. On or about June 2003, the defendant had approached the plaintiff and allotted the work for laying of Optical Fiber Cable (OFC) on a stretch of 55 kms. from Valsad to Navsari section. The terms and conditions was settled in the letter of Intent (LOI) dt. 5.7.2003. As per LOI, the excavation, laying of OFC and backfilling work in the stretch of 55 kms. was to be completed with different specifications of depth on different soils. The plaintiff executed the project and regular inspection was carried out by the representatives of the defendant and hardly any defects was pointed out. The representatives of the defendant used to verify the measurement sheets, reconciliation of material statements. Due to the uncooperative behaviour of the defendant in supplying the material and also due to floods and heavy rains, the work was delayed marginally. The plaintiff has submitted its first bill dt. 30.9.2003 for Rs. 17,76,360/- received by the representative of defendant on 6.10.2003. On 15.12.2003 the final bill which was of Rs. 43,17,607/- was submitted but on account of the promises for immediate release of payment, this bill was got revised on 3.3.2004 to Rs. 40,48,218/-. by the defendant. The defendant has released some of the amount. The defendant has failed to pay the balance amount of Rs. 19,77,516/-, despite several requests of the plaintiff and legal notice of demand. The plaintiff has prayed for the decree of Rs. 19,99,996/- which includes the principal amount of Rs. 19,77,516/- and interest of Rs. 22,480/- along with pendente lite and future interest @ 2% p.m against the defendant.
In the written statement, the defendant has contended that the plaintiff was engaged as a contractor and the work was awarded by the defendant to the plaintiff vide LOI dt. 5.7.2003. The work of the plaintiff was substandard and was not as per the specifications as laid down in the LOI. No inspection was allowed by the plaintiff and as much as the job was delayed inordinately. The defendant has supplied the material to the plaintiff as per their requirements. The measurement sheet submitted by the plaintiff along with the invoices were not signed as per the actuals but based on trial pit basis. The plaintiff had not carried out Duct Integrity Test, installation of manholes, route markers/joint Suit No. 108/05 Page 2 of 7 3 markers/electronic markers, for which the defendant arranged another agency to complete the work allotted to the plaintiff. The bills submitted by the plaintiff were not in accordance with the schedule of rates and terms and conditions as agreement upon in the contract. The defendant has denied that the amount which is claimed by the plaintiff is due and payable by the defendant to the plaintiff. It is prayed that the suit be dismissed.
In replication, the plaintiff has denied the allegations of the defendant and reiterated the same as stated in the plaint.
3. From the pleadings of the parties following issues were framed:-
1. Whether the plaintiff is entitled for the recovery of Rs. 19,99,996/- on ground of excavation, laying of OFC work as alleged in the plaint from the defendant? (OPP).
2. Whether the plaintiff is entitled for the interest pendent lite and future? If yes, then at what rate.(OPP)
3. Relief
4. I have heard Ld. counsel for the plaintiff and Ld. counsel for the defendant and perused the evidence on record. Ld. counsel for the plaintiff has relied upon AIR 1963 SC 884, AIR 1991 MP 59. Ld. counsel for the defendant has relied upon 2008 II AD (Delhi) 348, 2009 V AD (Delhi) 719, AIR 1980 PB 440, AIR 1961 Cal. 359, 1998 IV AD (Delhi)
57.
In order to prove his case, plaintiff has examined himself as PW1 and defendant has examined himself as DW1. My issues wise findings are as follows:
ISSUE NO. 15. PW1 has proved the affidavit tendered into evidence as Ex. PW1/A. In the affidavit, he has supported the case as made out in the plaint. PW1 has proved the letter of intent as Ex. PW1/1, the final bill dt. 15.12.03 as Ex. PW1/2, revised bill dt. 3.3.04 as Ex.
PW1/3, Legal demand notice as Ex. PW1/6, legal notice as Ex. PW1/7.
In cross examination, PW1 has deposed that vide letter dt. 10.9.03 which is Ex.
Suit No. 108/05 Page 3 of 7 4PW1/DX1, the plaintiff was informed regarding the non submission of the running bills. He maintained the measurement sheets as per the work executed but it was not on daily basis. He had never made any complaint in writing regarding the poor quality of the raw material, delayed supplied etc. to the defendant. The reconciliation sheet Ex. PW1/DX2 was prepared in his presence. He can bring the measurement sheets prepared by him. He had carried out the duct integrity test. It was done by him so there is no question of obtaining the report thereof. No report of duct integrity test has been maintained. He do not have any unit rate for sealing of RCC pipes collar ends. The RCC pipes collar ends was the part of work of RCC pipes insulation. The time was essence of the contract. Gate pases Ex. PW1/DX3 (total 87) were issued to his employee by the defendant. The defendant has not issued the completion certificate. He had received Rs. 20,40,430/- from the defendant on different occasions from different sites through cheques.
DW1 has proved his affidavit tendered into evidence as Ex. D1. In Ex. D1, DW1 has supported the case of the defendant as made out in the written statement. He has proved the power of attorney as Ex. DW1/1.
In the cross examination, DW1 has deposed that the defendant has not filed nor he had filed any resolution authorizing him to appear and depose in the present case. Ex. DW1/1 was got authorized by his office through company secretary. During the execution of work, the material has to be supplied by them. There is no record showing that the plaintiff has not started work within four days of the receipt of the intent and the service of contract to the plaintiff. The plaintiff has employed hardly 25% of the required labour. The defendant had employed site engineers to look and check the work done by the plaintiff. The plaintiff did not have de-watering arrangements and had made trenches in the water which causes subsidence of the soil and due to all these factors proper depth as desired a per the LOI was never met. The plaintiff had backfilled the trenches after laying the ducts without getting the same inspected by the Power Grid Officials and of defendant company and as such later on the same defects were to be rectified by the defendant company by Suit No. 108/05 Page 4 of 7 5 other small contractors. The awarded stretch was laid with ducts and later on with backfilling Vol. the same was done at lesser depth and less amount of sand and sand paddings. The sand paddings on all stretch was not done properly by the plaintiff. The site engineers used to visit the site on weekly basis provided the measurement sheet duly filled and supplied by the plaintiff. The measurement sheet prepared jointly contain the signatures of plaintiff. The total excavation work was done 53.38 meters by the plaintiff. The collar ends sealing jobs has been done by the plaintiff. The defendant has not to pay any extra payment for the said job.
6. It is admitted fact that the work has been awarded to the plaintiff by the defendant vide letter of intent dt. 5.7.03 which is Ex. PW1/1. This letter of intent provides the scope of work, paymentterms and conditions, bonus, time schedule and other terms and conditions of the contract.
It is provided in the LOI that time period is the essence of this contract and awarded work has to be completed within 35 days ( 10.8.03).
It is further provided that in case the plaintiff was able to complete the mentioned work within specified time schedule he will be entitled for the award of bonus of Rs. 7/- per meter for completed section of 10 kms each. If the works are incomplete within specified period in any form, plaintiff will not be entitled for the bonus.
It is alleged by the plaintiff in his plaint that due to the uncooperative behaviour of the plaintiff and due to floods and heavy rains, the work was delayed marginally. PW1 has no where deposed in his affidavit Ex. PW1/1 when he has started the work and has completed the work. In cross examination, PW1 had denied the suggestion that he has not completed the work within time. The plaintiff has failed to prove that he has completed the work within stipulated period of 35 days as provided by LOI. Accordingly, the plaintiff is not entitled the bonus as claimed in the alleged revised bill Ex. PW1/3.
PW1 has deposed in his cross examination that he had carried the duct integrity test. It was done by him so there is no question obtaining the report thereof. No report of Suit No. 108/05 Page 5 of 7 6 duct integrity tests has been maintained by the plaintiff. In Ex. PW1/3, the plaintiff has also claimed the charges for duct integrity test. If the plaintiff has carried out any duct integrity tests then he must have maintained the reports thereof. In the absence of the reports it is doubtful whether the plaintiff has carried out any duct integrity test as alleged by him. The claim of the plaintiff to the as to the amount of duct integrity tests as claimed in the alleged bill Ex. PW1/3 is also without any basis.
7. The payment terms and conditions of the LOI are as follows:-
The contractor will submit the Running bill for minimum quantity for the entire stretch of 10 Kms. in duplicate along with following documents.
(a) Measurement sheets duly signed by Punj Lloyd Ltd.
(b) Material Reconciliation statement duly verified by PLL Site Engineer
and stores incharge.
(c) Punh list/completion certificate for completed works duly signed by
the site engineer
On submission of Bills along with above required documents, you shall be liable for payment of 80% of Bill within 7 days after receipt of bills.
Balance 10% shall be liable for its payment within 15 days and balance 10% shall be kept as retention money for a period of 3 months.
As per the case of the plaintiff, the defendant was liable to pay Rs. 43,72,407/- to the plaintiff for the work done. Out of this amount, the plaintiff has received Rs. 23,94,891/- from the defendant. Now, the defendant is liable to pay the balance amount of Rs. 19,77,516/- to the plaintiff.
PW1 has deposed in his cross examination that he has maintained the measurement sheets as per the work executed but it was not on daily basis. He can bring the measurement sheets prepared by him. The plaintiff has not produced and proved these measurement sheets on record.
PW1 in his affidavit has deposed that the completion certificate was issued by Suit No. 108/05 Page 6 of 7 7 the site engineer. In cross examination, PW1 has deposed that the defendant has not issued the completion certificate.
It is evident from these facts that the plaintiff has not submitted the measurement sheets and the completion certificate along with alleged bill. The submission of these document along with bill is one of the requirements for the release of payment as per the LOI.
In view of the above discussions, I am of the opinion that the plaintiff has failed to prove that he is entitled for the recovery of Rs. 19,99,996/- from the defendant. This issues is accordingly decided against the plaintiff.ISSUE NO. 2
8. In view of the findings on the issues No. 1, no question of payment of interest arises to the plaintiff. This issues is also accordingly decided against the plaintiff. RELIEF
9. In view of the findings on the aforesaid issues, the suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared. File be consigned to Record Room.
Announced in the open court (RAJNEESH KUMAR GUPTA)
today i.e. on 03.11.10 Additional District Judge-8/Central
Tis Hazari Courts, Delhi
Suit No. 108/05 Page 7 of 7