Delhi District Court
Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd on 22 February, 2016
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Prabh Deep Kaur, DJS
Suit No.438/2014
Unique ID no.
In the matter of:
Shri Sudarshan Arts
Office at House no.3207
Gali no.72, BlockEII
Molarband Extension, Badarpur
New Delhi
Through its Proprietor
Sh. Laxmi Chand Sharma ..........Plaintiff.
vs
Guddu Investment Chennai Pvt. Ltd.
Office at 44, Friends Colony East
New Delhi
Through its Director
Smt. Kiran Nadar .........Defendant.
Date of institution of Suit : 15.10.2014
Date on which order was reserved : 19.02.2016
Date of pronouncement of the order : 22.02.2016
JUDGMENT
Vide this judgment pronounced in the open Court, the present suit for recovery has been disposed off. The plaintiff has filed the present suit with the following prayer:
" (a) pass a decree of Rs.2,34,305/ along with interest @ CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 1 of 11 16% per annum in favour of the plaintiff and against the defendant;
(b) This Court be further pleased to award the cost of the suit including Court Fees to the plaintiff;
(c) Cost of the litigation expenses may also be awarded."
1. Plaintiff's Averments: 1.1. The plaintiff is the proprietor of Shri Sudarshan Arts and running the business of construction, interior and provider of facilities on contract basis with material. The defendant Smt. Kiran Nadar is Director of Guddu Investment Chennai Pvt. Ltd. having their office at 44, Friends Colony East, New Delhi and is liable for any act done on behalf of company and is responsible for day to day affairs of the said company.
1.2. In the month of August 2008, the defendant allotted a work of construction on behalf of Shiv Nadar Foundation at Vidya Gyan School at village Dulhera Tehsil Sikandrabad, Distt Bulandshaher, U. P. In December 2009, the defendant approached the plaintiff to construct 2 BHK flat in the said premises on behalf of Guddu Investment Chennai Pvt. Ltd. the defendant herein, on the terms and conditions which has been approved in previous construction work which has been allotted by Shiv Nadar Foundation, however, the work order and final payment was made to the defendant on 02.09.2011 and a separate copy of work order and bill of quantity CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 2 of 11 were also handed over to the plaintiff. The plaintiff started the construction work and completed the finishing as per the architectural drawing. The entire construction work were checked out by the project manager according to their satisfaction and directions. As per the construction rules and agreement between the plaintiff and the defendant, the defendant withheld an amount of Rs.2,34,305/ towards the retention money @ 5% with a promise to release the amount in favour of the plaintiff after a period of one year after observing the defect, liability and quality of construction work as per the construction norms. The defendant handed over a receipt / certificate to the plaintiff after necessary deduction over the total amount. Till 28.12.2013 the defendant never made any complaint / objection in regard to the quality of the work. The plaintiff has requested to the defendant to release the amount in favour of the plaintiff but the defendant never made any payment. The plaintiff served a legal notice to the defendant on 03.09.2014 demanding the amount of Rs. 2,34,305/. The legal notice was duly served upon the defendant but despite that no payment has been made by the defendant till the filing of the present suit.
2. Defence of Defendants: 2.1. M/s Shiv Nadar Foundation had allotted work to the plaintiff, in the month of August 2008. As could be seen from the CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 3 of 11 work contract the work envisaged, besides other work of civil nature, construction of amphitheater as well. The plaintiff after completing the work, assigned to it, handed over the site to defendant and got its bill settled. It is a matter of record and an admitted fact that the plaintiff received a sum of Rs.20,11,391 in settlement of its bill, which included the work towards amphitheater as well. Though, the plaintiff constructed the amphitheater but the quality of construction was so poor and substandard that it caved in from one side. Moreover, the stones laid out started crumbling and the plaster started peeling off. A perusal of the photographs would leave no room for doubt relating of construction. As a result of which M/s Shiv Nadar Foundation had to award another contract for the work, namely construction of amphitheater to Mr. Naresh Kumar. The new work contract visualized work relating to relaying of amphitheater as well. Admittedly, M/s Shiv Nadar Foundation is entitled to recover the amount, at least to the extent spent on reconstructing the amphitheater, from plaintiff. Though, M/s Shiv Nadar Foundation was willing to initiative recovery proceedings against the plaintiff but it was suggested by plaintiff that the recoverable amount can be adjusted against the pending bills. On enquiry, it came to notice that the work awarded by defendant is undergoing and though, bills on running basis has been settled, an amount of Rs.2,34,305/ is lying with defendant. An admitted fact that CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 4 of 11 M/s Nadar Foundation is entitled to recover Rs.18,92,877/ from plaintiff. However, during course of discussion to settle the issue, the plaintiff volunteered and proposed to get the amount adjusted against any other bill, due and payable to it. Though, M/s Shiv Foundation asked the plaintiff to give it in writing so that the issue could be resolved finally but the plaintiff kept on avoiding the same on the one pretext or the other. Nothing is due and payable to the plaintiff rather, the plaintiff is required to pay the remaining amount to M/s Shiv Nadar Foundation.
3. Replication: As per architectural and structural drawings in full satisfaction of engineer in charge Mr. Rajeev Sharma, who was in charge between 20082009 and the amphitheater was handed over in the month of July 2009 to the defendant. The defect liability period of amphitheater was for one year i.e. up to July 2010. There was no complaint of any type regarding construction of the amphitheater. In fact there was a 4 meter deep water harvesting well which was constructed by another agency from the stage of amphitheater. The stage of amphitheater was six meters deep from ground level and after that water harvesting well was four meters deep from the stage of amphitheater which was ten meter deep from ground level. Due to heavy rain fall in August 2011 the ground water level came up to one meter from ground and amphitheater was filled with water logging. CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 5 of 11 The site engineer Rajeev Sharma directed to his staff for shifting the rain water and installed two high pressure pumps fitted in side of water harvesting well which was run regularly for 1015 days and due to regular water shifting, there was mud shifting around 10 trucks of mud and one third party of amphitheater, some horticulture park and some pathway shrunk up to 0.5 meter deep. The crack in the wall was due to shifting of mud through water and not due to poor quality of construction. No notice was given to plaintiff about the poor quality till date by the defendant. The plaintiff firm was working with the defendant group of companies since last 15 days, there was no complaint in any work regarding quality. The defendant or its sister concern M/s Shiv Nadar Foundation have no right to recover from the plaintiff as the quality of amphitheater was as per norms and the cracks in the wall were due to mudshifting through water as explained above. It is admitted that an amount of Rs.2,34,305/ is lying with the defendant. No discussion ever took place regarding adjustment of money of amphitheater. No such talk took place between the plaintiff and defendant and M/s Shiv Nadar Foundation never asked the plaintiff to give it in writing, so that the issue could be resolved finally.
4. On the basis of pleadings, following issues have been framed vide order dated 02.06.2015:
1. Whether the plaintiff is entitled to a decree of recovery CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 6 of 11 of money from the defendant ? If yes, what amount ? OPP
2. Whether the plaintiff is entitled to an interest ? If yes, at what rate ? OPP
3. Whether the plaintiff did not complete the work of construction as per agreement ? If yes, its effect ? OPD
4. Relief.
5. In PE, the plaintiff has examined Sh. Laxmi Chand as PW1 to prove its case. PW1 has tendered his evidence way of affidavit. PW1 He has relied upon the following documents:
a) copy of work order dated 02.09.2011 is Ex.PW1/A (colly8 pages);
b) copy of certificate dated 28.11.2011 issued by defendant is Ex.PW1/B (colly2 pages)
c) copy of legal notice is Ex.PW1/C;
d) copy of postal receipt are Ex.PW1/D;
e) copy of AD card is Ex.PW1/E. The witness was cross examined and PE was closed.
6. In DE, defendant has examined Sh. Ajeev Sharma, as DW1 to prove its defence. He has tendered his evidence by way of affidavit. He has been cross examined and DE was closed, thereafter, matter was fixed for final arguments.
7. Arguments heard. Record perused.
CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 7 of 11 ISSUEWISE FINDINGS
8. Issue no.1 to 3: (1). Whether the plaintiff is entitled to a decree of recovery of money from the defendant ? If yes, what amount ? OPP
2. Whether the plaintiff is entitled to an interest ? If yes, at what rate ? OPP
3. Whether the plaintiff did not complete the work of construction as per agreement ? If yes, its effect ? OPD
(a) For the sake of convenience, these issues are being discussed together being interlinked. It is settled principle that in civil cases, the burden of proof is upon the plaintiff to prove his case and the case of plaintiff has to stand on its legs. The criteria of burden of proof is, 'preponderance of probabilities', in other words, Court has to consider out of two parties, whose version appears to be more probable to be true.
(b) The admitted facts of the case are: Defendant and M/s Shiv Nadar Foundation are sister concerns. M/s Shiv Nadar Foundation had alloted work to plaintiff in August 2008 and in December 2009, defendant alloted construction work to plaintiff. Work order and payment was made by defendant on 02.09.2011 and as per work order, defendant withhold an amount of Rs.2,34,305/ towards the retention money @ 5% to be paid to the plaintiff after one year, in case no defect is found in construction.
(c) As per plaintiff, till 28.12.2012, defendant made no objection to CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 8 of 11 plaintiff and money was to be released to plaintiff.
On the other hand, as per defendant, plaintiff constructed as poor quality amphitheater for M/s Shiv Nadar Foundation and M/s Shiv Nadar Foundation got it constructed from some other contractor namely Mr. Naresh Kumar and when M/s Shiv Nadar Foundation was about to initiate recovery proceedings against plaintiff, plaintiff suggested to adjust the retention money withhold by defendant towards the amount payable by plaintiff to M/s Shiv Nadar Foundation and despite request, plaintiff has not given written consent.
(d) Defendant has admitted with holding of Rs.2,34,305/ as retention money @ 5% in written statement, defendant has stated that "On inquiry, it came to notice that the work awarded by defendant is undergoing and though, bills on running basis has been settled, an amount of Rs.2,34,305/ is lying with the defendant".
There is no dispute that remaining amount and only amount of retention money is in dispute.
(e) Now the onus shifts upon the defendant to prove that retention money was withhold by defendant as per oral settlement between parties and plaintiff has constructed the poor quality amphitheater and work was done by other contractor.
(f) The defendant has mentioned in written statement that:
"As a result of which M/s Shiv Nadar Foundation had to award another contract for the work, namely construction of amphitheater to Mr. Naresh Kumar. A copy of work order CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 9 of 11 dated ........... is annexure D4."
But neither the copy of work order was placed nor date mentioned. Defendant has not led any evidence to prove that the plaintiff has constructed bad quality construction and mere photographs are not enough to prove that the bad quality construction has been put into knowledge of plaintiff. Nor defendant has proved the oral settlement alleged by defendant in the written statement.
(g) Further, DW1 has deposed during cross examination that "I am not working in Guddu Investment Chennai Pvt. ltd. nor I am employed Pvt. Ltd. I work in HCL Corporation from the last one year. I was in Guddu Investment Chennai Pvt. Ltd. from 2007 to 2010. It is correct that the defendant had made the entire payment except 5% retention money i.e. Rs. 2,34,305/. It is correct that defendant was supposed to give this money to plaintiff after lapse of period of one year, if no defect appears in the building within a period of one year. It is correct that there is no defect in the flats constructed by the plaintiff. It is correct that the defendant had not served any notice regarding the defect in this work. It is correct that defendant had not paid this amount to the plaintiff till now. Vol. As per my knowledge plaintiff had not demanded this money from the defendant. It is correct that M/s Shiv Nadar Foundation had not served any notice to the plaintiff regarding poor quality of construction of amphitheater. Vol. Management as well as witness has communicated the plaintiff through email regarding the poor quality of construction of amphitheater. It is correct that I have no record of emails sent to plaintiff regarding poor quality of construction of amphitheater".
Thus, clearly, defendant has admitted the averments of plaintiff and CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 10 of 11 defendant has failed to prove his defence and plaintiff has been able to prove his averments.
(h) The plaintiff has claimed interest @ 16% per annum. However, such an exorbitant rate of interest cannot be awarded. Plaintiff is entitled only to reasonable rate of interest.
9. In view thereof, issue no.1 to 3 are decided in favour of plaintiff against the defendant. As all the issues have been decided in favour of plaintiff against the defendant, suit is liable to be decreed. Therefore, suit of the plaintiff is decreed and plaintiff is entitled to a decree of recovery of Rs.2.34,305/ along with cost of the suit. The plaintiff is also entitled to the interest @ 9% per annum from date of filing of suit till realization of amount.
10. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Pronounced in the open Court (Prabh Deep Kaur)
on this 22nd day of February 2016 Civil Judge, South East
Saket Courts, New Delhi
CS No.438/2014 Shri Sudarshan Arts vs Guddu Investment Chennai Pvt. Ltd. Page 11 of 11