Delhi District Court
(Through Ms Roohi Thakur vs Sartaj Hotels Apartment & Villas ... on 30 January, 2019
IN THE COURT OF SH HARGURVARINDER SINGH JAGGI
ADDL. DISTRICT JUDGE-02, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI
CS No. 16688/16
M/s Maple Consultants
128, First Floor, DLF Star Mall
Sector-30, NH-8
Gurgaon-122001
(Through Ms Roohi Thakur
Proprietor of the Plaintiff Firm) ... Plaintiff
Versus
Sartaj Hotels Apartment & villas Private Limited
NH-8, Delhi-Gurgaon Road
Adj. Shiv Murti
Rangpuri, New Delhi -110037(INDIA) ... Defendant
Date of institution of the plaint : 28.01.2013
Date of reserving the judgment : 06.12.2018
Date of pronouncement : 30.01.2019
JUDGMENT
1. The plaintiff namely, M/s Maple Consultants, a sole proprietorship concern has filed a suit for recovery of ₹5,22,433.49/- (Rupees Five lakhs twenty two thousand four hundred and thirty three and forty nine paise only) along with interest @18% p.a. through Ms. CS DJ ADJ No. 16688/2016 Page 1 of 32 Roohi Thakur against the defendant namely, Sartaj Hotels Apartment & Villas Pvt. Ltd., a private limited company.
2. As per the averments in the plaint, the defendant invited quotations for appointment of consultants for audio visual and acoustics for the project at Sartaj Taj hotels apartments & Villas Pvt. Ltd. The plaintiff through a letter dated 23.10.2009 sent a quotation to the defendant and the same was approved by the defendant through a letter dated 27.10.2009. The plaintiff was appointed consultant for the defendant for a total consideration of ₹5,00,000/- (Rupees Five lakhs only) exclusive of applicable service tax.
3. The plaintiff for the said contract raised invoices for an amount of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three hundred and fifty only). It was agreed between the parties that the payment would be made by the defendant to the plaintiff in five stages such as under:
a. 25% advance payment to be paid along with the letter of appointment;
b. 25% after submission of final BOQ estimate and initial drawings;
c. 25% after submission of final shop drawings;
d. 15% after award of work to contractor, and
e. 10% after final testing and commissioning.
4. The plaintiff has averred that as per their agreed terms and conditions, the plaintiff raised an invoice against the defendant. The defendant made a payment of first 25% to the plaintiff i.e. ₹1,12,125/-
(Rupees One lakh twelve thousand one hundred and twenty five only) CS DJ ADJ No. 16688/2016 Page 2 of 32 through cheque No. 856477 dated 05.11.2009 and ₹12,875/- (Rupees Twelve thousand eight hundred and seventy five only) towards TDS.
5. Thereafter, the plaintiff through email dated 05.02.2010 forwarded the design basis report (DBR) and BOM of audio visuals for the areas - mobile AV / live band for banquets, outdoor functions; background music and PA system; digital signage for 7 locations; meeting rooms; business centre VC room, and BOH meeting room for approval of the same from the principal consultant of the defendant. It is averred in the plaint that the plaintiff sought acknowledgment from the defendant so that the plaintiff can plan further course of action to complete the work within the agreed time period.
6. Subsequent to the sending of the DBR and BOM of audio visuals to the defendant, the plaintiff raised an invoice No. 27 dated 04.02.2010 for an amount of ₹1,25,000/- (Rupees One lakh and twenty five thousand only) as per the agreed terms and conditions. The plaintiff sent a reminder email dated 17.02.2010 to the defendant seeking release of the paymentThe plaintiff has averred that after receiving the DBR and BOM the defendant maintained radio silence and did not make any payment to the plaintiff.
7. The plaintiff raised the third invoice No. 17 on the defendant on 03.08.2010 for a total balance amount of ₹3,71,350/- (Rupees Three lakhs seventy one thousand three hundred and fifty only) but the defendant did not make any payment to the plaintiff.
8. The plaintiff has also averred that on request made by the defendant, the plaintiff forwarded the softcopies of the drawings and BOQ of the project by an email dated 23.11.2010. The plaintiff did so with the expectation that the release of the outstanding payment would CS DJ ADJ No. 16688/2016 Page 3 of 32 be expedited by the defendant. In short the plaintiff raised invoices against the defendant for the four out of the five stages i.e. 90% of the scope of work. It is the case of the plaintiff that the defendant has only made payment of 25% of the scope of work i.e. ₹1,50,000/- (One Lakh and fifty thousand only) and the same was paid as ₹1,12,125/- (Rupees One lakh twelve thousand one hundred and twenty five only) through cheque No. 856477 dated 05.11.2009 and ₹12,875/- (Rupees Twelve thousand eight hundred and seventy five only) towards TDS, and whereas the balance 65% of the scope of work i.e. ₹3,25,000/- (Rupees Three lakhs and twenty five thousand only) plus service tax @10.03% on the 90% of the total amount remains unpaid. As per the plaintiff the defendant owes the plaintiff an amount of ₹5,22,433.49/- (Rupees Five lakhs twenty two thousand four hundred and thirty three and forty nine paise only) and whose break up is as under:
a. 25% after submission of final ₹1,25,000/- BOQ estimate and initial drawings b. 25% after submission of final ₹1,25,000/-
shop drawing
c. 15% after award of work to ₹75,000/-
contractor
d. Service tax @10.03% on ₹46,350/-
₹4,50,000/-
Amt. Due ₹3,71,350/-
e. Interest @18% on ₹3,71,350/- ₹1,51,083.49 Total Amt. Claimed ₹5,22,433.49 CS DJ ADJ No. 16688/2016 Page 4 of 32
9. Hence, the present suit for recovery of ₹5,22,433.49/- (Rupees Five lakhs twenty two thousand four hundred and thirty three and forty nine paise only).
10. To the contrary, the defendant has raised the predictable line of defences, such as, the plaintiff has not approached the court with clean hands and intentionally not placed on record relevant documents. The defendant has urged that the plaintiff made false representation to the defendant about its expertise in providing consultancy for audio-visual and acoustic at defendant's motel situated at Celebration Garden, Delhi and it was on the basis of such false representations that the defendant ended up paying a sum of ₹1,25,000/- (Rupees One lakh twenty five thousand only) as advance, which the plaintiff is liable to return.
11. The defendant in its written statement has urged that the plaintiff did not provide the initial system design along with BOQ, estimate and initial drawings and as the plaintiff did not fulfil the initial obligations no question for releasing any further payment arose.
12. The defendant in its written statement has urged that though the plaintiff had undertaken to supply total design and drawings of system integration but regardless of the requests and assurances, the plaintiff failed to provide even the initial drawings. The defendant has averred in the written statement that the plaintiff failed to provide anything to the defendant. The plaintiff knowingly did not file complete set of documents in the present legal proceedings.
13. The defendant in its written statement denied existence of any legally binding contract / agreement between the plaintiff and the defendant. It is urged in the written statement by the defendant that on CS DJ ADJ No. 16688/2016 Page 5 of 32 bare readings of the documents filed along with the plaint, there exists no legally binding contract between the parties.
14. The defendant urged that not only the suit preferred by the plaintiff is barred by the law of limitation but also by the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC").
15. The plaintiff filed its replication on 21.08.2013 and more or less reiterated the contents of the plaint refuting the defendant's written statement.
16. On completion of pleadings, the court on 29.04.2014 framed the following issues:
1) Whether the suit of the plaintiff is without any cause of action against the defendant? ... OPD
2) Whether the suit of plaintiff is barred by limitation? ... OPD
3) Whether the plaintiff is entitled for a decree of recovery in the sum of ₹5,22,433.49/- (Rupees Five lakhs twenty two thousand four hundred and thirty three and forty nine paise only) against the defendant? ... OPP
4) Whether the plaintiff is entitled for the interest, if so, then at what rate and for what period? ... OPP
5) Relief
17. On behalf of the plaintiff, Ms. Roohi Thakur (PW1) proprietor of the plaintiff sole proprietorship firm on 04.06.2015 deposed and along with her evidence by way of affidavit (Ex.P-1) tendered 21 documents marked as Ex.PW1/1 - Ex.PW1/21. It is observed that Ld. counsel for the defendant lodged his objections to the admissibility of the documents at the time of the exhibition of the documents for being inadmissible and also on mode of proof. The cross-examination of CS DJ ADJ No. 16688/2016 Page 6 of 32 PW1 was deferred on 04.06.2015 for 11.08.2015. It is also observed that on failure of the plaintiff' witness, the plaintiff evidence was closed and the same was allowed subject to the imposition of cost vide order dated 15.10.2015. PW1 was cross-examined on 16.03.2016 and 22.05.2017.
18. On the other side, the default by the defendant to not cross- examine the plaintiff' witness, the right to cross-examine was closed. The defendant was allowed to cross-examine the PW1 subject to imposition of cost.
19. This court on careful examination of the complete case record did not find any order, which dealt with the objections flagged by the Ld. counsel for the defendants on the admissibility of the documents and the mode of proof, as recorded in the examination-in-chief dated 04.06.2015.
20. PW1 in her cross-examination stated that she is carrying on the business of the sole proprietorship concern - M/s Maple Consultants. PW1 voluntarily stated that all the negotiations with the prospective clients are done by the professionals engaged by the firm and she does not do the work of the negotiations with the prospective clients. PW1 further stated that she can tell what transpired between the client and the employee of the plaintiff firm, as they report back to PW1. PW1 further stated that she does not remember that in what manner the defendant company invited the quotation for appointment of consultants for audio visuals and acoustics.
21. PW1 in her cross-examination stated that she did not deal with the defendant and further stated after going through the case record that the letter dated 23.10.2009 is not on record. PW1 voluntarily CS DJ ADJ No. 16688/2016 Page 7 of 32 stated that there is a quotation dated 17 th Sept. on record. PW1 admitted that she did not file any letter dated 17.09.2009. PW1 also admitted that from point 'A' to 'A' in Ex.P-1 is beyond the pleadings. PW1 further stated that she did not place on judicial record the original letter dated 27.10.2009 (Ex.PW1/2) because she was not able to find it. PW1 stated that in the letter dated 27.10.2009 the email address of the defendant is [email protected]
22. PW1 stated that in paragraph No. 6 of the plaint, she has mentioned that the plaintiff through an email dated 05.02.2010 sent the design basis report (DBR) and BOM of audio visuals for the areas. PW1 denied the suggestion that it is white lie. PW1 on a question put by the Ld. counsel for the defendant during the cross-examination with regard to Ex.PW1/3 that from point 'B' to 'B' of Ex.P-1 there is no reference about the sending of any design, the PW1 replied that quote is a part of design basis report submitted by an email dated 05.02.2010. PW1 further stated that the date has not been mentioned anywhere in her evidence by way of affidavit that she sent the copy of the quotation Ex.PW1/3 vide email dated 05.02.2010. PW1 further stated that Ex.PW1/3 is not an original document and is a photocopy of the email sent. PW1 admitted that the document does not have a reference as being an attachment to an email or being an email itself. PW1 admitted that the same does not bear any signature either of the sender or that of the receiver. PW1 on a question being put to her, whether an email is on record which shows Ex.PW1/3 as an attachment, answered that Ex. PW1/10 is the relevant document. PW1 denied the suggestion that the quotation Ex.PW1/3 was never sent to the defendant either by way of email or through any other mode of CS DJ ADJ No. 16688/2016 Page 8 of 32 communication. PW1 further denied the suggestion that the document Ex.PW1/3 does not bear the signature of the sender or plaintiff's consultant because it was fabricated later on. PW1 denied the suggestion that Ex.PW1/3 and Ex.PW1/10 are subsequently fabricated documents.
23. PW1 admitted that Ex.PW1/17 dated 23.11.2010 does not show the attachment of Ex.PW1/4 - Ex.PW1/8. PW1 voluntarily stated that in the said email, the plaintiff forwarded the soft copies of the drawings and bill of quantity (BOQ). PW1 admitted that as per email Ex.PW1/17 the plaintiff promised to deliver the hard copies of the drawings to the defendant on the next date. PW1 admitted that there is no document on record to show that the said documents were duly received by the defendant. PW1 voluntarily stated that the documents were delivered by hand by one of her employees. PW1 denied the suggestion that no such drawings were ever prepared by the plaintiff and were sent by an email as an attachment and there is any record of receipt of the drawings by the defendant. PW1 voluntarily stated that the drawings were sent earlier to the defendant by an email dated 05.02.2010 Ex.PW1/10 by an attachment.
24. PW1 conceded that the extracts from paragraph 6 of Ex.P-1 from point B to B1 and whole of paragraph No. 8 of Ex.P-1 from point C to C1 and whole of paragraph No. 10 from point D to D1 are facts which she has not stated in the plaint or replication.
25. PW1 denied the suggestion that the documents tendered by her along with Ex.P-1 are falsely manufactured documents. PW1 admitted that the plaintiff was to raise the bill stage wise and after sending certain drawings, the plaintiff raised the invoice Ex.PW1/13 on CS DJ ADJ No. 16688/2016 Page 9 of 32 04.02.2010. PW1 denied the suggestion that as the plaintiff did not prepare any drawings for the defendant no further stage for raising invoice arose. PW1 denied that Ex.PW1/13 dated 04.02.2010 is in respect to the advance payment received by the plaintiff. It is observed that in the cross-examination a typographical error with regard to the date of Ex.PW1/13 had crept in as Ex.PW1/13 has been mentioned as 04.06.2010, whereas the correct date on Ex.PW1/13 is 04.02.2010.
26. PW1 denied the suggestion that no work was done by the plaintiff and also denied that there are differences in the amount in the bills and the emails. PW1 admitted that Ex.PW1/16 was never sent to the defendant and for that reason it does not bear any acknowledgment of receipt by the defendant.
27. On behalf of the defendant, Gurbir Singh (DW1) manager of the defendant company, who works in the liaison department stepped into the witness box. DW1 tendered his evidence by way of affidavit - Ex.DW1/1, wherein he stated that the defendant company was constructing two motels on its land situated at Celebration Gardens, Village Ranpuri, Near Shiv Murti, New Delhi and defendant invited quotations and the plaintiff had approached the defendant with regard to the same. DW1 has stated in Ex.DW1/1 that the defendant company appointed the plaintiff and issued letter of appointment dated 27.10.2009 (Ex.PW1/2) and also paid an advance sum of ₹1,25,000/- (Rupees One lakh and twenty five thousand only) to the plaintiff. DW1 further stated in Ex.DW1/1 that the plaintiff had undertaken to supply total designs and drawings but inspite of requests and assurances the plaintiff failed to provide even the initial drawings to the defendant. DW1 has also stated in Ex.DW1/1 that the plaintiff did not even visit CS DJ ADJ No. 16688/2016 Page 10 of 32 the site and never sent the hardcopies of the designs as promised. DW1 in Ex.DW1/1 stated that he tried to contact the plaintiff and even the main contact person Mr. Haresh Thakur never came forward.
28. DW1 was cross-examined by the Ld. counsel for the plaintiff on 22.11.2017. DW1 admitted that the defendant company paid ₹1,25,000/- (Rupees One lakh and twenty five thousand only) to the plaintiff. DW1 admitted that the defendant company did not issue legal notice / letter to the plaintiff seeking refund of ₹1,25,000/- (Rupees One lakh and twenty five thousand only). DW1 admitted that neither counter-claim nor any suit for recovery had been filed by the defendant against the plaintiff. DW1 voluntarily stated that the said action could not be taken as the managing director of the company fell sick from the year 2008 onwards and his condition deteriorated in the succeeding years.
29. DW1 admitted that no letter/email was written by the defendant company to the plaintiff with regard to non-supply of the designs and drawings by the plaintiff. DW1 admitted that the he did not contact any person from the plaintiff for supply of hard copy of the drawings and designs. DW1 voluntarily stated that the managing director of the defendant company used to contact the marketing team of the plaintiff.
30. DW1 stated that he consulted the letter dated 23.10.2009 Ex.DW1/DX1 (OSR) and Ex.PW1/2 as record before preparing his evidence by way of affidavit Ex.DW1/1. DW1 stated that the email ID of the defendant company at the time of dealing with the plaintiff was [email protected] DW1 denied that CS DJ ADJ No. 16688/2016 Page 11 of 32 [email protected] is the other email ID of the defendant company.
31. DW1 stated that the work was not done by the plaintiff and no other company was engaged by the defendant for performing the said work. DW1 voluntarily stated that a portion of the motel has been sold in the year 2012. DW1 denied the suggestion that since the defendant had to sell the motel and for that reason alone the work was not got executed from the plaintiff.
32. DW1 denied the suggestion of the defendant having received the documents Ex.PW1/3 to Ex.PW1/11. DW1 denied the suggestion of not having brought the minutes book for meeting dated 27.09.2017 as the same is a contrived document.
33. DW1 stated that the defendant did not receive the legal notice Ex.PW1/21. DW1 admitted that the address given in the notice Ex.PW1/21 is the address of the defendant company. DW1 stated that mention of Khasra No. in the address is to be mentioned in the letters relevant for delivery to the defendant.
34. Ld. counsels for the parties advanced their oral arguments on 04.10.2018, 08.10.2018 and 06.12.2018.
35. Sh. Narender Narayan, Ld. counsel for the plaintiff submitted that the suit is for recovery of unpaid money, as the plaintiff discharged the obligations and delivered the drawings, plans to the defendant, the defendant after receiving the drawings, plans, failed to pay the plaintiff an amount of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three hundred and fifty only). Ld. counsel further submitted that the present suit is for recovery of ₹4,96,350/- (Rupees CS DJ ADJ No. 16688/2016 Page 12 of 32 Four lakhs ninety six thousand three hundred and fifty only) and interest @18%p.a. w.e.f. 03.08.2010.
36. Sh. Suneel Kumar Atreya, Ld. counsel for the defendant submitted that a document not admissible in evidence, though brought on record, has to be excluded from consideration. Ld. counsel further submitted that PW1 in her cross-examination has admitted that there are certain documents which are beyond the pleadings. Ld. counsel further submitted that PW1 admitted in cross-examination that the email address of the defendant is [email protected]. Ld. counsel for the defendant concluded his arguments by stating that the plaintiff failed to discharge the contractual drawings and the plaintiff failed to prove the drawings, plans and their delivery to the defendant in accordance with law and the suit is liable to be dismissed with costs.
37. On careful perusal of the pleadings, evidence and the submissions advanced by Ld. counsels for the parties, the issue-wise findings ensue as hereunder.
ISSUE NO.1 Whether the suit of the plaintiff is without any cause of action against the defendant?
38. The onus to prove the issue No.1 was on the defendant. As per the defense flanked by the defendant in the written statement, the defense raised is that it is the plaintiff who failed to fulfill the commitments and discharge the obligations such as submission of BOQ estimates, initial drawings and final drawings. Further, DW-1 CS DJ ADJ No. 16688/2016 Page 13 of 32 Gurbir Singh during his cross- examination admitted that an amount of ₹1,25,000/- (Rupees One lakh and twenty five thousand only) was paid to the plaintiff by the defendant as an advance. DW-1 further admitted that the defendant neither sought refund of ₹1,25,000/- (Rupees One lakh and twenty five thousand only) nor filed any counter claim or suit against the plaintiff seeking recovery of ₹1,25,000/- (Rupees One lakh and twenty five thousand only).
39. This court observes that the defendant has failed to discharge the onus that the suit filed by the plaintiff against the defendant is without cause of action merely for the reason that on one hand the defendant in its written statement, particularly para No.3 under the heading para-wise reply on merit admitted that the defendant invited the quotients for appointment of consultants of the audio-visual and acoustic projects to which the plaintiff through its owner submitted work schedule and scope of work. The defendant in its written statement further stated that the defendant through letter dated 27.10.2009 appointed the plaintiff as their audio-visual and acoustic consultants against total consideration of ₹5,00,000/- (Rupees Five lakhs only). Interestingly, the defendant has also admitted in its written statement that the plaintiff raised the invoices for a total amount of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three hundred and fifty only), however, the plaintiff did not render any service as no drawings, lay out, concept design report were submitted. The plaintiff has averred in the plaint and even placed invoice Ex PW1/16 on record (to which an objection on the point of being certified copy had been raised by the defendant - vide order dated 04.06.2018) for an amount of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three CS DJ ADJ No. 16688/2016 Page 14 of 32 hundred and fifty only) about which the defendant has categorically averred in the written statement that the plaintiff raised an invoice for the amount of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three hundred and fifty only) Ex PW1/16 is dated 03.08.2010 and about which the defendant has admitted that such an invoice was raised by the plaintiff. Thus, this court observes that it is beyond comprehension that there is no cause of action to file the present suit against the defendant by the plaintiff.
40. This court observes that Ex DW1/DX-1 dated 23.10.2009 was put across to Gurbir Singh-DW-1 during his cross-examination, who in his cross- examination stated that he consulted the said document along with Ex.PW1/2 dated 27.10.2009. On perusal of the written statement of the defendant and the cross-examination of the DW-1and Ex.DW1/DX-1 the defendant has unequivocally admitted that the plaintiff did raise an invoice of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three hundred and fifty only) Ex.PW1/16 dated 03.08.2010 and with the suit for recovery of money filed by the plaintiff on 28.01.2013.
41. Further, DW-1 during cross- examination admitted paying ₹1,25,000/- (Rupees One lakh and twenty five thousand only) and on the other hand neither the recovery of ₹1,25,000/- (Rupees One lakh and twenty five thousand only) had been sought by the defendant nor any evidence had been led by the defendant that the amount of ₹1,25,000/- (Rupees One lakh and twenty five thousand only) was advanced to the plaintiff for any other purpose, work than undertaking audio-visual and acoustic project at the Celebration Garden, NH-8, CS DJ ADJ No. 16688/2016 Page 15 of 32 Delhi- Gurgaon Road, adjoining Shiv Murti, Rangpuri, New Delhi
-110037.
42. This issue is decided against the defendant and in favour of the plaintiff, as there exists substantial cause of action against the defendant.
ISSUE NO.2 Whether the suit of plaintiff is barred by limitation?
43. The defendant in paragraph No.7 of the written statement has challenged the maintainability of the suit for being barred by limitation.
44. During the course of the arguments, Ld. counsel for the defendant has submitted that the plaintiff has based its case on the letter of approval dated 27.10.2009 and the first installment was paid on 05.11.2009 by the defendant to plaintiff, whereas, the suit has been instituted on 28.01.2013. Ld. counsel for defendant further submitted that the plaintiff failed to lead any evidence, whether the initial drawings and/or final drawings were prepared and delivered to the defendant by the plaintiff against acknowledged receipt.
45. As per the plaintiff, the suit had been instituted on 28.01.2013 and the same had been instituted well within the limitation of three years, as it is a suit for recovery of money filed by the plaintiff against the defendant.
46. With regard to the arguments advanced by the Ld. counsel for the defendant on the suit being barred by limitation this court is not in agreement with the defendant. On one hand the defendant in its written statement has stated that the plaintiff failed to discharge its CS DJ ADJ No. 16688/2016 Page 16 of 32 contractual obligations towards being the consultant for audio-visual and acoustics for the defendant' site. As noted above Ex.PW1/16 bears the date of 03.08.2010 for an amount of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three hundred and fifty only) and the correctness for the invoices for total amount of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three hundred and fifty only) been raised by the plaintiff is very well admitted in para No.3 under the heading para-wise reply on merit of the written statement.
47. This court observes that the defense raised by the defendant is, the plaintiff after receiving the advance amount, did not render any services and failed to submit drawings, lay outs and concept design report and thus nothing was payable by the defendant to the plaintiff. It is observed that on perusal of pleadings, documents, deposition and cross- examination of the witnesses there is no qualm that the plaintiff was engaged by the plaintiff, as a consultant for audio-visual and acoustic for site.
48. As per Ex.DW1/DX-1 the quotation dated 23.10.2009 submitted by the plaintiff to the defendant is for a sum of ₹5,00,000/- (Rupees Five lakhs only) exclusive of service tax and the payments terms viz., 25% advance payment along with letter of intent; and 25 % after submission of final BOQ, estimate and initial drawing; 25% after submission of final shop drawings; 15% after award of work to the contractor, and 10% after final testing and commission. The work schedule mentioned in Ex.DW1/DX-1 is three weeks after being awarded the consultancy contract; two to three weeks for meetings and discussion to finalize the system requirements, with revised system design along with BOQ, estimate and initial drawings and two CS DJ ADJ No. 16688/2016 Page 17 of 32 to three weeks for issue of final shop drawings including conduit layouts, speaker placement, schematics etc.
49. This court observes that Ex DW1/DX-1 dated 23.10.2009 was put across to Gurbir Singh-DW-1 during his cross-examination, who in his cross- examination stated that he consulted the said document along with Ex PW1/2 dated 27.10.2009. Going by the defense of the defendant, the plaintiff did raise an invoice of ₹4,96,350/- (Rupees Four lakhs ninety six thousand three hundred and fifty only) Ex PW1/16 dated 03.08.2010 and with the suit for recovery of money filed by the plaintiff on 28.01.2013, this court holds that the suit is not barred by limitation and had been instituted by the plaintiff well within the prescribed period.
50. Accordingly, the issue No. 2 is decided against the defendant and in favour of the plaintiff.
ISSUE NO.3 Whether the plaintiff is entitled for a decree of recovery in the sum Rs 5,22,433.49/- (Rupees Five lakhs twenty two thousand four hundred thirty three and forty nine paisa) against the defendant?
51. The onus to prove issue No. 3 was on the plaintiff. The dictum in law is as old as the hills, 'one who avers must prove.' The case of the plaintiff is the suit for recovery of money, unpaid money with regard to a contract entered between the parties. It is not in dispute that the defendant appointed plaintiff as a consultant for audio-visual and acoustics for project at the Celebration Garden, NH-8, Delhi- Gurgaon Road, adjoining Shiv Murti, Rangpuri, New Delhi -110037.
CS DJ ADJ No. 16688/2016 Page 18 of 32It is for the plaintiff to prove that the plaintiff discharged its obligation of the contract and regardless of discharging the contractual obligations, the money remains unpaid by the defendant. To the contrary, the defendant has raised the defence in the written statement that the plaintiff after receiving the advance payment of ₹1,25,000/- (Rupees One lakh and twenty five thousand only) did not render any services and failed to submit drawings, lay outs and concept design report and thus nothing was payable by the defendant to the plaintiff.
52. Ld. counsel for the defendant during the course of arguments submitted that on 04.06.2015 the defendant had raised various objections to the documents filed by the PW1 along with her evidence by way of affidavit (Ex.P-1) of which the relevant documents and objections, particularly, with regard to audio visual design basis report (Ex.PW1/11) - objected for being unsigned, undated and photocopies; emails dated 22.12.2009 (Ex.PW1/9), 05.02.2010 (Ex.PW1/10), 18.01.2010 (Ex.PW1/12), 19.02.2010 (Ex.PW1/14), 17.02.2010 (Ex.PW1/15), 23.11.2010 (Ex.PW1/17), 01.06.2011 (Ex.PW1/18), 02.05.2011 (Ex.PW1/19) and 25.04.2011 (Ex.PW1/20) - objected for want of contemporaneous certificate.
53. The procedure when document is not admitted in evidence by the opposite party on being tendered two questions commonly arise, first whether the document is authentic, or in other words, is that which the party tendering it represents it to be; and second, whether, supposing it to be authentic it is legally admissible in evidence as against the party who is sought to be affected by it.
CS DJ ADJ No. 16688/2016 Page 19 of 3254. All legal objections as the admissibility of a document should, as far as possible, be promptly disposed of, and the court should note the objection thereon.
55. This court observes that Hon'ble Supreme Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another - (2003) 8 SCC 752 held that unless objection is raised at the relevant time to the mode of proof of a document, any objection as to proof of document stands waived and the document stands proved. The Hon'ble Supreme Court has observed that if objection as to the mode of proof is taken at the relevant point of time then the person against whom the objection is raised is put to notice and thereafter such person can lead evidence on the technical aspects of the mode of proof, but if no objection is raised, there is prejudice to the party against whom objection is raised subsequently.
56. The relevant paragraphs, Paras 20,21 and 23 of the judgment in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another (ibid) read as under:
"20. The learned counsel for the defendant- respondent has relied on The Roman Catholic Mission v. The State of Madras and Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though-brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may CS DJ ADJ No. 16688/2016 Page 20 of 32 be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the made of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the CS DJ ADJ No. 16688/2016 Page 21 of 32 evidence the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.
21. Privy Council in Padman and Ors. v. Hanwanta and Ors. (1915) PC 111: 19 CWN 929 did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed:
"The defendants have now appeal to the Majesty in Council and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention."CS DJ ADJ No. 16688/2016 Page 22 of 32
23 Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced."
57. As regards, the mode of proof the provisions of the Indian Evidence Act, 1872 should be carefully borne in mind. The general rule is that document should be proved by primary evidence, i.e., the document itself should be produced in original and proved. If secondary evidence is permitted, the court should see that the conditions under which evidence can be let in, exist.
58. As mentioned above, the case of the plaintiff is that the plaintiff was appointed as a consultant for audio visual and acoustics for the defendant's project at Sartaj Taj hotels apartments & Villas Pvt. Ltd. The plaintiff prepared the drawings, plans and delivered the same through email and a physical copy of the drawings and plans were also delivered by the plaintiff to the defendant. The present suit is for the recovery of unpaid money by the plaintiff from the defendant by the for the work undertaken by the plaintiff. The defence urged by the defendant is that after payment of an advance of ₹1,25,000/- (Rupees One lakh and twenty five thousand only) the plaintiff failed to discharge its obligations and did not deliver any drawings and plans. The plaintiff through PW1 tendered to audio visual design basis report, which also comprises of plans (Ex.PW1/11), to which the defendant took an objection of being inadmissible. The objection was duly recorded by the Ld. Predecessor of this court on 04.06.2015. On CS DJ ADJ No. 16688/2016 Page 23 of 32 applying the legal principle culled out in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another (ibid), the plaintiff had been put to notice and thereafter the plaintiff could have lead evidence on the technical aspects of the mode of proof of Ex.PW1/11 and emails dated 22.12.2009 (Ex.PW1/9), 05.02.2010 (Ex.PW1/10), 18.01.2010 (Ex.PW1/12), 19.02.2010 (Ex.PW1/14), 17.02.2010 (Ex.PW1/15), 23.11.2010 (Ex.PW1/17), 01.06.2011 (Ex.PW1/18), 02.05.2011 (Ex.PW1/19) and 25.04.2011 (Ex.PW1/20).
59. This court observes that in cases in which a plan, drawing of the property is produced by either of the parties and is not admitted by the opposite party, it must be properly proved by - (a) examination of the person who prepared it and by requiring him to certify it as correct and to sign it, or (b) by affidavits or examination of the parties and witnesses.
60. The plaintiff with regard to Ex.PW1/11 failed to examine any person, who ought to have prepared the plan, drawing and certify its correctness. It is also observed that Ex.PW1/11 is an undated and unsigned document.
61. With regard to the objection of the defendant to the emails dated 22.12.2009 (Ex.PW1/9), 05.02.2010 (Ex.PW1/10), 18.01.2010 (Ex.PW1/12), 19.02.2010 (Ex.PW1/14), 17.02.2010 (Ex.PW1/15), 23.11.2010 (Ex.PW1/17), 01.06.2011 (Ex.PW1/18), 02.05.2011 (Ex.PW1/19) and 25.04.2011 (Ex.PW1/20) are inadmissible in evidence as the same being electronic record are not accompanied by a contemporaneous certificate, in short, a certificate under Section 65B of the Indian Evidence Act. This court holds that Hon'ble High Court of Delhi in its latest judgment in ICICI Bank Vs Kamini CS DJ ADJ No. 16688/2016 Page 24 of 32 Sharma - RFA 297 of 2015 decided on 31.01.2018 in an appeal overturned the judgment of a trial court, wherein the trial court dismissed the suit of the plaintiff bank for non-filing of the original loan recall notice. Her Ladyship, Prathiba M. Singh, J. traversed through the judgments and legal position with regard to secondary evidence and particularly, Section 65B of the Indian Evidence Act, 1872, and held as under:
"15. The above judgement was followed in Harpal Singh v. State of Punjab AIR 2016 SC 5389 and by a Division Bench of this Court in Kundan Singh v. State I (2016) CCR1 (Del.). A Single Judge of this Court, relying on Anvar v. Basheer (supra), in ELI Lilly v. Maiden Pharmaceuticals 2017 (161) DRJ 65 held as under:
"18. Though the ratio of Anvar P.V. supra, to me, appears to require the certificate/affidavit under Section 65-B of the Evidence Act to accompany the electronic record when produced in the Court, and a learned Single Judge of this Court also in Ankur Chawla vs. Central Bureau of Investigation opining so acquitted the petitioner/accused therein (though the SLP is pending in the Supreme Court) but a Single Judge of the High Court of Rajasthan in Paras Jain Vs. State of Rajasthan did not agree with the judgment of this Court in Ankur Chawla supra observing that "when legal position is that additional evidence, oral or documentary, can be produced during the course of trial if in the opinion of the Court production of it is essential for the proper disposal of the case, how it can be held that the certificate as required under Section 65-B of the Evidence Act cannot be produced subsequently in any CS DJ ADJ No. 16688/2016 Page 25 of 32 circumstances if the same was not procured alongwith the electronic record and not produced in the Court with the charge-sheet.
In my opinion it is only an irregularity not going to the root of the matter and is curable".
A Division Bench of this Court in Kundan Singh Vs. State also, on a reading of Anvar P.V. supra, disagreed with the view taken in Ankur Chawla supra and held that the words "produced in evidence" did not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under Section 65-B(4). It was held that all that is necessary is that the person giving the certificate under Section 65-B(4) should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in Section 65-B(2), identify the electronic record, describe the manner in which computer output was produced and also give particulars of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer. It was further held that emails are downloaded and computer output, in the form of paper prints, are taken every day; these emails may become relevant and important electronic evidence subsequently; it is difficult to conceive and accept that the emails would be inadmissible, if the official who downloaded them and had taken printouts had failed to, on that occasion or simultaneously record a certificate under Section 65-B. .................
20. It thus but has to be held that the plaintiffs are entitled to file the certificate under Section 65-B of the Evidence Act, even subsequent to CS DJ ADJ No. 16688/2016 Page 26 of 32 the filing of the electronic record in the Court. Order XI Rule 6 of CPC as applicable to commercial suits is also not found to provide to the contrary."
In the present case, the Plaintiff bank has filed the certificate under Section 65B through its witness and also certified all the copies of electronic records including bank statements etc., Thus the requirements under Section 65B have been fulfilled.
16. There is however some serious re-thinking required on the manner in which electronic documents are to be proved. In each case where electronic documents are involved, it would be impractical to expect the parties to produce the primary evidence which would be the medium on which the document is stored, considering that electronic documents could be stored on hard drives, hard disks, CPUs, micro-processors, cameras, telephones, etc. Certificates under Section 65B accompanying the printouts have simply become standard formats. cross- examination on these certificates can involve debates on model of computer, printer, questions as to who took printouts etc. Courts, therefore, need to take a pragmatic attitude in these cases. Unless there is a serious challenge to the electronic documents i.e., tampering, forgery, hacking, misuse of an email address, change in contents etc., usually printouts of electronic documents ought to be allowed to be read in evidence.
The complex procedure laid down for proving of electronic documents can prove to be extremely cumbersome and can have enormous impact especially in commercial transactions, as it has had in the present case.
... ... ...
CS DJ ADJ No. 16688/2016 Page 27 of 32.........
20. The statement of accounts is duly accompanied by a certificate under Section 65B of the Evidence Act. The witness of the Plaintiff bank PW-1 has appeared before the Court and has tendered his evidence. There is no reason to disbelieve his deposition. The documents on record clearly reveal that the Defendants availed of the loan and have failed to repay part of the same. Thus, the judgment of the Trial Court is unsustainable, erroneous and contrary to law. The impugned judgment/order is set aside."
62. This court observes that a certificate not accompanying the email is a mere irregularity and the same is curable, as held by Hon'ble High Court of Delhi in ICICI Bank Vs Kamini Sharma - RFA 297 of 2015 decided on 31.01.2018. It is further observed on careful examination and scrutiny of the judicial file that a certificate under Section 65B of the Indian Evidence Act, 1872 of Ms. Roohi Thakur, Proprietor of Maple Consultant is on record and bears the court endorsement of being filed on 20.08.2014. It is further observed that the said certificate under Section 65B of the Indian Evidence Act, 1872, was filed prior to the recording the examination-in-chief of PW1 on 04.06.2015. It is held that the objection of the defendant to the emails being inadmissible in evidence for want of certificate are untenable.
63. That said, the emails dated 22.12.2009 (Ex.PW1/9), 05.02.2010 (Ex.PW1/10), 18.01.2010 (Ex.PW1/12), 19.02.2010 (Ex.PW1/14), 17.02.2010 (Ex.PW1/15), 23.11.2010 (Ex.PW1/17), 01.06.2011 CS DJ ADJ No. 16688/2016 Page 28 of 32 (Ex.PW1/18), 02.05.2011 (Ex.PW1/19) and 25.04.2011 (Ex.PW1/20) are addressed to [email protected].
64. This court observes PW1 during her cross-examination admitted that the email address of the defendant in Ex.PW1/2 is [email protected]. DW1, who stepped in the witness box stated that the email address of the defendant is [email protected] and not [email protected]. It is observed that the email address of the defendant on Ex.PW1/2 is mentioned as [email protected]. During the course of arguments, this court put a query to the Ld. counsel for the plaintiff that all the emails relied by the plaintiff in evidence are the ones which are purported to sent by the plaintiff and no email in reply by the defendant, to any of the emails dated 22.12.2009 (Ex.PW1/9), 05.02.2010 (Ex.PW1/10), 18.01.2010 (Ex.PW1/12), 19.02.2010 (Ex.PW1/14), 17.02.2010 (Ex.PW1/15), 23.11.2010 (Ex.PW1/17), 01.06.2011 (Ex.PW1/18), 02.05.2011 (Ex.PW1/19) and 25.04.2011 (Ex.PW1/20) has been filed. No forthcoming explanation came to this regard. However, Ld. counsel for the defendant submitted that no such reply-emails have been filed by the plaintiff, merely for the reason, at first place no such emails were ever sent to the correct and admitted email address of the defendant i.e. [email protected]. Ld. counsel for the defendant further submitted that the emails relied by the plaintiff are self-serving and fabricated emails.
65. This court observes that regardless of the defendant in its written statement [Paragraph Nos. 10, 14 of the 'para-wise-reply on merits'] denying the receipt of the purported emails sent by the plaintiff, the plaintiff failed to lead any evidence with regard to the CS DJ ADJ No. 16688/2016 Page 29 of 32 email id(s) in question, details of ownership, custody and access to such email id(s) to which the plaintiff sent all the emails. Thus, the emails filed by the plaintiff do not take the case of the plaintiff any far to prove delivery of drawings, plans, etc., relieving the plaintiff for discharge of its obligations, as per the contract.
66. Lastly, the PW1 during her cross-examination voluntarily stated that the documents were delivered by hand by one of her employees to the defendant. It is observed that neither such an employee stepped in the witness box nor summoned by the plaintiff. It is held that the testimony of PW1 with regard to delivery of the documents through an employee is unreliable.
67. As per the existing evidence on record being the pleadings and documents admitted by the parties, this court is unable to arrive at the conclusion on preponderance of probabilities that plaintiff is entitled for a decree for recovery of ₹5,22,433.49/- (Rupees Five lakhs twenty two thousand four hundred and thirty three and forty nine paise only). Consequentially, this court holds that the plaintiff has failed to prove that the plaintiff discharged its obligations, as per the contract. The plaintiff has failed to discharge the onus casted upon for the issue under consideration. Accordingly, the issue No. 3 is decided against the plaintiff and in favour of the defendant.
ISSUE NO.4 Whether the plaintiff is entitled for the interest, if so, than at what rate and for what period?
CS DJ ADJ No. 16688/2016 Page 30 of 3268. With the issue No.3 decided against the plaintiff, the plaintiff is not entitled for any interest. The issue No. 4 is decided against the plaintiff and in favour of the defendant.
69. However, this court deems it appropriate to mention about a disturbing trend at bar of filing written submissions on issues, which were neither framed nor arguments were addressed during the course of final arguments. Such practice is deprecated and is to be avoided. A written submission advanced behind the back of an opposite party and not even serving an advance copy of the written submission to the opposite party is untenable and impermissible in law.
70. The defendant in its written submissions has unabashedly advanced submissions on the plaintiff having no locus to file the present suit, as the suit has been filed in the name of M/s Maple Consultants and not in the name of Ms. Roohi Thakur its sole proprietor. This court observes that there is an averment in the plaint that the plaintiff is a registered proprietorship firm and further cause title of the suit, clearly states that the plaintiff - M/s Maple Consultants through Ms. Roohi Thakur, proprietor of the firm. It is observed that the plaintiff sole proprietorship firm is not a legal entity but the plaint has been filed by the sole proprietor, Roohi Thakur and the cause title reads as, "M/s Maple Consultants - Through Ms. Roohi Thakur, proprietor of the plaintiff firm."
71. This court observes that His Lordship, J.R. Midha, J., Kiran Chhabra Vs Pawan Kumar Jain 2011 178 DLT 462 observed that when the court calls for written arguments to be submitted, it is expected to be something as would assist the court in its endeavor to do justice and decide the case. Simply filing a list of judgments and CS DJ ADJ No. 16688/2016 Page 31 of 32 attaching photocopies does not assist the court nor does filing long- winded arguments which are not structured and properly arranged.
72. In light of above observations and discussion, the suit of the plaintiff fails and is dismissed. Parties to bear their own costs.
73. Decree sheet be prepared accordingly.
74. File be consigned to record room.
Digitally signed by HARGURVARINDER HARGURVARINDER SINGH JAGGI
SINGH JAGGI Date: 2019.01.30
16:31:17 +0530
Pronounced in the open (Hargurvarinder Singh Jaggi)
Court on 30.01.2019 Addl. District Judge-02
South West District
Dwarka Courts Complex
New Delhi
CS DJ ADJ No. 16688/2016
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