Delhi District Court
M/S. Aadhar Stumbh vs National Building Construction ... on 21 August, 2018
IN THE COURT OF MS. SHUNALI GUPTA, ADJ06, SOUTH DISTRICT,
SAKET COURT COMPLEX, NEW DELHI
CS No.: 121/18
CSDJ No.207222/16
CNR No. DLST010003432012
In the matter of:
M/s. Aadhar Stumbh
IInd Floor, Plot No.2, Anand Plaza,
Local Shopping Centre,
Sainik Vihar, Pitampura,
New Delhi110034.
.......Plaintiff
Versus
National Building Construction Corporation Ltd.
Integrated Office Complex,
Lodhi Road, New Delhi110003.
.......Defendant
Date of Institution : 31.08.2012
Date reserved for judgment : 20.08.2018
Date of pronouncement of judgment : 21.08.2018
Suit for Recovery of Rs.19,99,999/.
J U D G M E N T:
1.The brief facts of the case as culled out from the pleadings of the parties are summarized as under:
1.1 Plaintiff company registered under the Companies Act, 1956 is engaged in the business of civil consultancy, engineering and building construction work. The suit has been filed by Sh. Amit Mittal - one of the CS DJ No.7222/16 Page No.1/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
Principal officers of the company and duly authorized in this regard vide Board Resolution dated 21.07.2012 passed by the Board of the Directors of the plaintiff company.
1.2 Defendant Corporation is engaged in civil construction and consultancy services and also undertakes construction work for and on behalf of various Central and State Agencies. The defendant Corporation also subcontracts various civil and construction work to the contractors for and on behalf of its clients.
1.3 It is stated that the plaintiff company was awarded the work of construction, retrofitting and renovation works at MRD Pavilion, Pragati Maidan, New Delhi by the defendant vide letter dated 29.06.2007. The stipulated date of commencement of work as per the agreement was 09.07.2007 and the stipulated date of completion was 15.02.2008. As per the letter, the sum contracted for the work was Rs.3,64,93,526/. However, due to delays attributable to the defendant, instead of 15.02.2008 the work was completed on 01.03.2008 after which the physical possession of the constructed building was taken over by the MRD.
1.4 The defendant, without any notice to the plaintiff, made number of deductions from running account and final bill prepared by the department, details whereof are as under: CS DJ No.7222/16 Page No.2/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
(i) Claim No.1: As per Clause 4.2.4, the letter of Intent envisaged deduction of DVAT @3% from the plaintiff's running account bills and final bill. The department has withheld additional DVAT @2% without any reason, authority and right from running account bills detailed as under:
From 4th running Account Bill : Rs.3,23,874/ From 5th and prefinal Bill : Rs.1,58,390/ Rs.4,82,264/
(ii) Claim No.2: The department has deducted/withheld the following amounts, as mentioned below, under the 'Miscellaneous' head:
From 1st running Account Bill : Rs. 9,950/
From 2nd running Account Bill : Rs. 5,500/
From 3rd running Account Bill : Rs. 31,328/
From 4th running Account Bill : Rs. 37,080/
From 5th running Account Bill : Rs. 19,016/
From 6th and final Bill : Rs. 66,370/
Rs.1,69,244/
(iii) Claim No.3 : The department had deducted/withheld a sum of Rs.70,000/ from 1st running account bill on account of submission of material testing, etc.
(iv) Claim No.4 : The work was completed by the plaintiff on 01.03.2008.
As such, the defect liability period expired on 14.05.2008 and immediately thereafter, the plaintiff was entitled to the refund of the entire Security Deposit as per clause 74 of the Agreement. However, the defendant has not refunded the same and the plaintiff is entitled to the said amount.
CS DJ No.7222/16 Page No.3/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
(v) Claim No.5 : There are part payments amounting to Rs.11,50,000/, to be released to the plaintiff by the department, from the final bill measured and prepared by the department.
Thus, a total amount of Rs.24,06,787/ is due and payable by the defendant which includes Rs.18,01,488/ on account of the aforesaid claims and Rs.6,05,299/ on account of interest accrued thereon @12% per annum from the date of expiry of the defect liability period till the date of the filing of the suit i.e. till 31.08.2012.
1.5 Since the defendant failed to pay the said amount despite repeated requests and reminders, a legal notice dated 05.07.2011 was served upon the defendant calling upon the defendant company to remit the aforesaid amount. Despite service of the legal notice, the defendant failed to release the payment. Hence, the present suit. However, to bring the suit within the jurisdiction of this court, only a sum of Rs.19,99,999/ along with pendentelite and future interest @12% per annum has been claimed.
2. Written statement has been filed by the defendant denying the claim made by the plaintiff. It is stated that the deductions of various amounts have been done by the defendant as per the terms & conditions of the contract and for which the plaintiff had given his consent at the time of entering into the agreement. The running bills and final bills were prepared, measured and submitted by the plaintiff itself and the plaintiff CS DJ No.7222/16 Page No.4/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
has accepted the final bill vide their letter dated 10.08.2009. Hence, the claim made by the plaintiff does not exist.
As regards claim no.1 i.e. deduction of money on account of DVAT is concerned, it is stated that as per clause 4.2.4 of the contract, the plaintiff was required to be registered under the composite scheme but the plaintiff failed to submit the documentary evidence on time and therefore, necessary deductions have been made from the plaintiff's running bills.
As regards claim no.2, the justification for deductions made in the bill, is mentioned herein below:
(a) 1st RA Bill Rs.9,950.00 Mobile Phone charges, Computer repair, purchase of diesel for vehicle provided by contractor
(b) 2nd RA Bill Rs.5,500.00 Salary of Driver
(c) 3rd RA Bill Rs.31,328.00 Salary of Driver, Hire charges of SCV
(d) 4th RA Bill Rs.37,030.00 Printing & Stationery, Mobile phone charges, Diesel for Vehicle
(e) 5th RA Bill Rs.19,016.00 Printing & Stationery, Mobile Phone charges, Computer Operator Salary
(f) 6th & Final RA Bill Rs.66,730.00 Printing & Stationery, Electricity bill charges As regards claim no.3, it is stated that the amount of Rs.70,000/ was withheld for testing charges of building materials from 1 st RA Bill and the same has already been released to the plaintiff which fact has been concealed by the plaintiff.
As regards claim no.4, it is stated that upon request of the plaintiff, the CS DJ No.7222/16 Page No.5/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
security deposit was immediately released to the plaintiff on 06.07.2010 which fact has not been correctly stated by the plaintiff. However, a sum of Rs.4,60,000/ has been withheld from the security deposit on account of settlement of water charges vide GCC clause no.44 as the water for the construction purpose was used by the plaintiff from the water connection of ITPO, Pragati Maidan, New Delhi and the plaintiff is legally bound to pay the water charges as per the claim made by the ITPO, New Delhi.
Finally, with regard to claim no.5, it is stated that the partpayment of Rs.11,50,000/ as averred by the plaintiff, is not due as the plaintiff had accepted full & final payment from the defendant, receipt whereof is lying with the defendant.
2.1 Regarding the legal notice, it is stated that reply to the legal notice was sent to the plaintiff wherein proper explanation was given and which was accepted by the plaintiff as full & final settlement. Rest all the contrary averments made in the plaint have been denied and dismissal of the suit has been sought.
3. Replication has been filed by the plaintiff reiterating the averments made in the plaint and denying the contrary averments made in the written statement filed by the defendant.
4. Upon completion of the pleadings, on 17.03.2015 the following issues CS DJ No.7222/16 Page No.6/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
were framed:
1. Whether the plaintiff has filed the present suit without any cause of action as alleged in preliminary objection no.1 in the WS? OPD
2. Whether the plaintiff is entitled to suit amount as claimed for?
OPP
3. Whether the plaintiff is entitled to interest, if so, at what rate and for which period? OPP
4. Relief.
5. In support of its case, the plaintiff has examined only one witness i.e. PW1 Sh. Amit Mittal - Authorized Representative of plaintiff company. In lieu of his examinationinchief he has deposed by way of affidavit Ex.PW1/A, wherein he has reiterated the case set forth in the plaint and has relied upon the following documents:
i. Ex.PW1/1 - Certified copy of Board Resolution dated 21.07.2012. ii. Ex.PW1/2 (OSR) - Copy of Memorandum and Articles of Association.
iii. Ex.PW1/4 (Colly) - Copy of letter dated 29.06.2007. iv. Ex.PW1/5 - Copy of letter dated 17.12.2008. v. Ex.PW1/6 - Copy of letter dated 28.02.2008. vi. Ex.PW1/7 - Copy of letter dated 10.08.2009. vii. Ex.PW1/8 - Copy of letter dated 19.05.2011. viii. Ex.PW1/9 - Copy of legal notice.
6. In defence evidence, the defendant has examined only one witness i.e. CS DJ No.7222/16 Page No.7/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
DW1 Sh. Jagmohan Singh - Additional General Manager (Engg.) in defendant company. In lieu of his examinationinchief he has deposed by way of affidavit Ex.DW1/A, wherein he has reiterated the case set forth in the plaint.
Both PW1 and DW1 were duly crossexamined by the opposite side.
7. Final arguments addressed by Ld. Counsel Sh. Amit Punj for the plaintiff and Ld. Counsel Sh. Kundan Kumar for the defendant have been heard. Record has been carefully perused.
8. Discussion on Issues:
ISSUE No.1 : Whether the plaintiff has filed the present suit without any cause of action as alleged in preliminary objection no.1 in the WS?
and ISSUE No.2 : Whether the plaintiff is entitled to suit amount as claimed for?
and ISSUE No.3 : Whether the plaintiff is entitled to interest, if so, at what rate and for which period?
9. All the issues are taken up together as they are connected, based on the same evidence and hence, a common discussion shall suffice. 9.1 In brief, the case of the plaintiff is that their company was awarded the tender for construction, retrofitting, etc. of MRD Pavilion at Pragati Maidan and terms whereof were contained in the Letter of Intent dated 29.06.2007 Ex.PW1/4. The work was duly completed on 01.03.2008 CS DJ No.7222/16 Page No.8/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
pursuant whereto the physical possession of the constructed building was taken over by MRD. However, the defendant did not clear in totality the bills raised by the plaintiff company towards the work done. In fact, certain illegal deductions were made and certain amounts from the said bills were withheld by the defendant details whereof have already been specified in the plaint. Hence, withholding of the said amount and deductions made being illegal - defendant is bound to release the entire payment.
9.2 On the other hand, the case of the defendant is that the deductions made by the company from the bills, were on account of DVAT as the plaintiff company had failed to submit the documentary evidence regarding registration under the composite scheme. Further, as regards the withholding of the amount from the security deposit, the same is stated to be on account of settlement of water charges which the plaintiff is legally bound to pay to the ITPO as per the claim made by them. It has been submitted by Ld. Counsel for the defendant that they have no objection in releasing the amount of the final bill if the plaintiff company approaches them and settles the dispute with regard to the electricity and water charges.
9.3 Thus, precisely the claims of the plaintiff company can be broadly categorized under two heads: CS DJ No.7222/16 Page No.9/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
(i) on account of illegal deductions made from the bills
(ii) on account of amount withheld from the final bill and security deposit. 9.4 Now, at the outset, I may note that the defendant in its written statement has stated that the plaintiff had accepted the final bill vide their letter dated 10.08.2009. The said letter is an admitted one as it has been filed by the plaintiff and has been proved on record by them as Ex.PW1/7. Thus, before adverting further, it becomes imperative to consider the said letter. For clarity on further discussion, the contents of the said letter are extracted and reproduced hereunder:
".....We hereby certify and undertake that there are no dues, disputes or payments pending with NBCC for above cited work other than the final bill gross amount of Rs.97,237.00. The gross value of the work done is Rs.2,44,57,023.00. The over all measurements and amounts upto the final bill of above cited work have been accepted by us full and final. We also certify and undertake that we shall not have any claim against above cited work from NBCC or Owner. We also certify and undertake that we have no dispute with any of our vendors or labour/petty contractor and statutory departments.
We are certifying and undertaking above without any duress....."
(underlining mine) 9.5 Now, admittedly the plaintiff had concluded the work on 01.03.2008. The running bills obviously must have been raised during the continuance of the work and the final bill would have been raised at the time of CS DJ No.7222/16 Page No.10/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
conclusion of the work or immediately thereafter. This letter Ex.PW1/7 (reproduced hereinabove) was written by the plaintiff on 10.08.2009 i.e. after more than a year from the date of completion of work and raising the bills. Thus, had there been any grievance of the plaintiff regarding deductions made from the bills under any head/ expense/ tax(s), etc., the same would have been raised by the plaintiff in the said letter. In fact, vide the said letter, the acceptance by the plaintiff of the measurements and amounts upto the final bill as full & final, by itself rules out any such plea which the plaintiff is now harping upon or agitating in the plaint. 9.6 Also the argument now sought to be raised that the said letter was written under pressure, has no weight or substance at all as firstly the plaintiff in the said letter has categorically stated that the undertaking is without any duress and secondly and more importantly, till the time of evidence, it has never been the case of the plaintiff that the said letter was written under duress. Even in the legal notice given by the plaintiff to the defendant with respect to the claim for money Ex.PW1/9, which is dated 05.07.2011 i.e. written almost two years after the letter Ex.PW1/7 or in the plaint, it is nowhere even whispered that the letter Ex.PW1/7 was got written forcibly and under duress. Thus, I can certainly say that this argument is absolutely a bald & a superfluous argument taken at the stage of evidence in order to wriggle out of the undertaking and CS DJ No.7222/16 Page No.11/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
certification given by the plaintiff through the letter Ex.PW1/7. 9.7 Thus, in so far as the claims with regard to the deductions made from the bills, in view of the undertaking given in letter Ex.PW1/7, the said claims no more exist.
9.8 Delving further with regard to the amount withheld from the final amount and the security deposit, admittedly the amount of Rs.97,237/ is still due from the final bill. The same is clearly stated in letter Ex.PW1/7. Also, DW1 during crossexamination has categorically admitted that the defendant has withheld the said sum from the final bill on account of non settlement of water and electricity charges.
9.9 Further, regarding security deposit there is a clear admission in the written statement that a sum of Rs.4,60,000/ has been withheld by them from the security deposit for the settlement of water charges as the water for the construction purpose was used by the plaintiff from the water connection of ITPO, Pragati Maidan and the plaintiff is legally duty bound to pay the water charges as per the claims made by the ITPO. DW1 was also crossexamined on this aspect wherein he has admitted that the defendant has not released the complete security deposit to the plaintiff. DW1 further deposed that the defendant had received a letter from ITPO, Pragati Maidan to the effect that the plaintiff has not deposited the electricity & water charges and in this regard some amount was CS DJ No.7222/16 Page No.12/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
deducted by ITPO from NBCC/defendant. On being crossexamined with regard to there being any document on record issued by ITPO to NBCC, DW1 deposed that there is no document on record showing that any letter was issued by ITPO to NBCC or deducting any amount from NBCC. Though the work pertained to year 2008, not even a single letter has been filed on record till date by the defendant to show any demand having been raised by the ITPO on account of alleged water or electricity consumption by the plaintiff during the construction work nor there is any letter/communication by the defendant to the plaintiff claiming/fixing upon them any liability for the amount due towards the water or electricity charges. Thus, there is nothing on record, whatsoever, to show that ITPO had ever raised any demand from the defendant for electricity/water charges on account of construction work. 9.10 That being so, the defendant has failed to show the reason for withholding the said amount from the security deposit till date. Thus, the said amount being arbitrarily withheld from the bills raised by the plaintiff towards the work executed by their company - the defendant is clearly under liability to pay the same.
Issues accordingly are decided in favour of the plaintiff.
10. Relief:
In view of my discussion on aforesaid issues, the suit of the plaintiff is CS DJ No.7222/16 Page No.13/ 14 M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.
decreed in the following terms:
(i) the defendant is liable to pay to the plaintiff cumulatively a sum of Rs.5,57,237/ which consists of Rs.97,237/ towards the final bill and Rs.4,60,000/ towards the security deposit.
(ii) Further, plaintiff is also held entitled to interest @10% per annum on the amount of Rs.5,57,237/ from the date of filing of the suit till its recovery.
(iii) Costs of the suit is also awarded.
Decree sheet be prepared accordingly and file be consigned to Record Room after necessary compliance.
Announced in the Open Court (Shunali Gupta) Dated: 21.08.2018 Addl. District Judge(06) Digitally signed by SHUNALI South Distt. Saket Courts, SHUNALI GUPTA New Delhi. Date: GUPTA 2018.08.21 16:06:16 +0530 CS DJ No.7222/16 Page No.14/ 14
M/s. Aadhar Stumbh Township Pvt. Ltd. v. NBCC Ltd.