Delhi District Court
M/S Ram Kripal Singh Construction Pvt. ... vs Thysseen Krupp Elevator (India) Pvt Ltd on 26 May, 2014
IN THE COURT OF SH. AJAY GUPTA
ADDITIONAL DISTRICT JUDGE-02 : SHAHDARA DISTRICT
KARKARDOOMA COURTS : DELHI
RCA No. 1/14
Unique I.D. No. 02402C0011962014
M/s Ram Kripal Singh Construction Pvt. Ltd.
Having its Corporate office:-
308 & 309, Third Floor,
Suncity Shopping Archade,
Haryana-122002. ..........Appellant
Versus
Thysseen Krupp Elevator (India) Pvt Ltd.
North Zone,
429, Functional Industrial Estate,
Patparganj, Delhi-110092
Through; its Managing Director
Mr. Jurgen Bohler ........Respondent
1. Date of institution of Appeal : 13.01.2014
2. Arguments heard/order reserved on : 15.05.2014
3. Date of decision : 26.05.2014
JUDGMENT
1. The present appeal is filed against the judgment and decree dated 05.12.2013, passed by the court of Ld. ACJ/CCJ/ARC(SHAH), Karkardooma Court, Delhi. Vide the aforesaid order Ld. Trial Court has dismissed the suit of the appellant (hereinafter to be referred as plaintiff).
2. The brief facts of the present case are as under:-
(a) that plaintiff filed a suit for recovery of Rs.RCA-1/2014 Page 1 of 7
2,80,665/- . alongwith 24 % interest against the defendant on the ground that National Buildings Construction Company Ltd plaintiff company (hereinafter to be referred as NBCC) awarded the plaintiff a tender for construction of the Hospital building in Panipat Haryana. As per tender an elevator was required to be attached to the said building. Thus, vide agreement dated 30.07.2010, plaintiff company awarded the defendant with a contract for supply and erection of the elevator.
(b) that defendant had assured the plaintiff that it would obtain permission from NBCC for supply of the lift by the defendant. Thus, for obtaining approval, plaintiff made a request to the NBCC by a letter dated 09.08.2010, however, NBCC rejected the request of defendant company by a letter dated 07.09.2010. The NBCC truncated the elevator item from the tender item and informed the plaintiff company and thereafter plaintiff company informed the same to the defendant company by a letter and Email dated 31.1.2012.
(c) that plaintiff company was constraint to cancel the agreement accordingly vide aforesaid communication plaintiff requested the defendant to return the advance payment of Rs.
4,00,950/-. In response to the said communication defendant company sent an Email on 08.02.2012 and stated that it would RCA-1/2014 Page 2 of 7 return the advance amount after deducting 30% of the advance money received from plaintiff, however, defendant failed to pay the aforesaid amount despite request, reminder and service of legal notice dated 31.12.2012. The defendant vide their reply to the legal notice has refused to pay the aforesaid amount, hence, the present suit.
3. The defendant did not file their written statement within stipulated period, hence, their defence was struck of. Thereafter, matter was listed for plaintiff's evidence and plaintiff examined its Sr. Manager/Attorney as PW-1, however, defendant did not lead any evidence. After completion of trial Ld. trial court dismissed the suit of the plaintiff with the following observations:
(a) that there is a rescission clause in the agreement and in case of cancellation of agreement, defendant was entitled to deduct 30% amount of the scheduled price of the contract.
(b) that the consent of defendant of refunding the amount after 30% deduction of the advance amount, can not be treated as a fresh contract between the parties in terms of section 13 of the Contract Act. Thus, it was held that plaintiff had paid 30% amount of the scheduled price which defendant was entitled to deduct as per agreement, consequently, it was held that plaintiff was not entitled for the recovery claimed by them.
4. Now the present appeal has been filed by the plaintiff mainly on the following grounds:-
RCA-1/2014 Page 3 of 7i) that ld. trial court has failed to appreciate that the consent given by the defendant company to return the amount after 30% deduction of the advance value amounts creation of a new agreement which was approved by the plaintiff.
ii) that ld. trial court has failed to appreciate that the defendant was already aware about the rejection of the approval of the defendant's contract by NBCC dated 07.09.2000, thus, they were not required to be informed by the plaintiff.
iii) that ld. trial court has failed to appreciate that NBCC had truncated the elevator item after a long time and till the date elevator was not manufactured.
5. I have heard ld. counsel for the parties and gone through the record of the case.
6. It is admitted position of the fact that plaintiff company had awarded a contract of installation of a lift to the defendant by virtue of a contract (hereinafter to be referred as 'the contract') dated 30.07.2010. According to plaintiff the aforesaid contract was subject to the final approval by the NBCC and this approval was to be obtained by the defendant. This court does not find any substance in this plea of the plaintiff because no such stipulation has been made by the parties in the contract. Thus, all the terms and conditions are settled in the agreement itself, no plea outside this agreement can be considered or accepted. Furthermore, the averments of the plaintiff as well as their own record does not support their aforesaid contentions. It is clear from the pleadings as well as letter dated 07.09.2010 EX. PW 1/4 that it was plaintiff who had sought approval of 'the RCA-1/2014 Page 4 of 7 contract' from the NBCC. Thus, defendant was not under an obligation to seek approval. It was the plaintiff company who itself awarded the contract to the defendant company and the agreement was not made with any such pre condition.
7. It is further clear from the clause no. 12 (rescission clause) of the agreement that in case purchaser would cancel the contract, the defen dant company shall be entitled to a certain percentage of compensation of the scheduled price. In this regard the clause no. 12 (rescission clause) is very much relevant which reads as under:--
12. Rescission clause:
" If purchaser cancels the contract and/or commits a breach of contract, the Company shall be entitled to following compensation:
1. 20% of part I of Price Schedule including all taxes if order is cancelled after issuance the Confirmation Order but before finalization of drawings.
2. 30% of part I of Price Schedule including all taxes if order is cancelled after finalization of drawing but before the notice of readiness to deliver.
3. 90% of part I of Price Schedule including all taxes if order is cancelled after notice of readiness to deliver.
4. 100% of part I of Price Schedule including all taxes and price variation if order is cancelled after delivery of material at site."
8. It is clear from the record that it was the plaintiff company who cancelled the agreement vide letter dated 31.1.2012 EX PW 1/5 Thus, as per the clause 12 of the agreement defendant was entitled to the agreed percentage of deduction and it is clear from the stand of the plaintiff as well as EX PW 1/8 that according to plaintiff, defendant was entitled to the 30% RCA-1/2014 Page 5 of 7 deduction but of the advance amount. It is clear from the perusal of the aforementioned compensation clause that the amount is to be deducted from the part-I of the scheduled price and not of the advance money paid by the plaintiff. There is no ambiguity in the said clause of the agreement. The plaintiff has paid a sum of Rs. 400950/- and as per agreement defendant is entitled to deduct the 30% amount which comes to the same amount received by the defendant company. Thus, defendant company was fully entitled to retain the aforesaid amount on account of 30% compensation.
9. According to plaintiff, the consent (regarding returning of the advance money after 30% deduction) given by defendant by their Email amounts to a fresh contract as their consent was accepted by the plaintiff and therefore, now defendant is liable to go by this agreement. This court does not find any substance in this stand of the plaintiff as it is clear from the Email of the defendant that they gave the aforesaid consent only subject to the condition of the original contract between the parties. The relevant portion of the Email reads as under:
"As per the standard condition of contract for cancellation of contract, we will be deducting 30% of the Advance value since the project was under
manufacturing after approval of GAD at your end"
10. Thus, it is clear that defendant never agreed to make a new contract and rather it is clear that defendant had relied upon the terms of the original contract. It seems from the text of this Email that defendant had inadvertently agreed to return the amount of advance money after deduction. Even if, it is assumed that defendant agreed to pay the aforesaid amount they can not be forced to comply with their consent as the aforesaid consent was beyond the stipulation of the original RCA-1/2014 Page 6 of 7 contract. Furthermore, it is clear from the reply to the legal notice given by the defendant (EX PW 1/10 ) that they had corrected their aforesaid mistake as they clearly stated in their reply that they have retained the advance amount against the compensation. Moreover, it is well settled law that for making a contract both the parties have to be at ad-idem regarding the terms and conditions of the contract, however, in the instant case defendant made the said statement in their Email only subject to the stipulation of the original agreement. Thus, the consent given by the defendant in their Email can not be accepted as an agreement as such the same can not be enforced by the plaintiff to seek recovery as prayed.
11. Keeping in view of the aforesaid facts and circumstances it is held that defendants were entitled to have 30% amount of the scheduled price-I and not of the advance money paid by the plaintiff to the defendant. Thus, it is further held that defendant was legally entitled to retain the amount of Rs. 4,00,950/- as compensation in terms of the rescission clause 12 (2) of the contract.
12. This court does not find any infirmity in the impugned order passed by the Ld. Trial Court, consequently, the appeal merits dismissal and accordingly same is dismissed. Parties are left to bear their own costs. Decree Sheet be prepared. TCR be sent back to the Ld. trial Court alongwith a copy of this order. Appeal file be consigned to the Record Room.
(Announced in the open court (AJAY GUPTA)
on 26th May, 2014) ADJ-02, Shahdara
Karkardooma Courts/Delhi
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