Delhi District Court
Ms R.R. Enterprises vs M.D. Of D.S.C Ltd. Anr on 1 February, 2024
IN THE COURT OF SH. KISHOR KUMAR, ADDITIONAL
DISTRICT JUDGE-04, NORTH, ROHINI COURTS, DELHI
CS DJ 57973/16
CNR NO. DLNT01-000063-2011
M/s R R Enterprises
Through its Proprietor
Rajeev Mehta
B-359, Street No. 4,
Majlish Park, Adarsh Nagar,
Delhi-110033
.........Plaintiff
Vs.
1. M D of DSC Ltd.
2. M/s DSC Ltd.
Through its MD
Both At :
Registered office C-66,
South Extension, Part II
New Delhi-110049
.......Defendants
Date of Institution : 15.02.2011
Final Arguments heard : 01.02.2024
Date of Judgment : 01.02.2024
Final Outcome : Suit Decreed
JUDGMENT
1. The present suit was filed under Order XXXVII CPC for recovery of Rs.10,64,328/- with interest @ 18% p.a. against the defendants.
2. As per plaint, the brief facts of the case are that plaintiff is a proprietorship firm, with Sh Rajeev Mehta as proprietor of the firm, deals in business of construction of civil CS DJ 57973/16 R R Enterprises v M D of DSC Ltd & Anr. Page No.1 of 13 and structural work. It is averred that Defendant no.2, MD of defendant no.1, approached the plaintiff in the month of September, 2008 for fabrication erection of centering and shuttering for Nazafgarh Drain Project. Being approached by defendants, plaintiff submitted its quotation by which defendants placed the work order bearing no. DSCL/ Drain/Shuttering/23/2008 upon plaintiff for fabrication and erection of Nazafgarh Drain Project. It is further averred that in terms of work order, plaintiff submitted R/A bills to defendants and defendants failed to release the said payment in time. It is further averred that out of total amount of Rs.25,58,633/- for final bill dated 31.03.2009, defendant made part payment of Rs.17,30,128/- to plaintiff. It is further averred that the remaining balance of Rs.8,28,505/- with interest @ 18% p.a. is still outstanding on the part of defendant. It is further averred that despite repeated requests to the defendants vide letters dated 18.03.2009, 18.03.2009, 29.03.2009 and 02.04.2009, defendants failed to make the said payment. It is further averred that aggrieved by the act of defendants, plaintiff filed a complaint against defendants to the Principal Agency of defendants, i.e. Executive Engineer, Commonwealth Project Division CW111 PWEL (GNCTD) Nirman Kuteer, KG Marg, Delhi. It is further averred that being confronted to principal agency qua the said complaint, defendants agreed to pay the outstanding amount within 7 days in front of principal agency, however, defendant again failed to comply with the same. Thereafter, plaintiff sent a legal notice dated 01.09.2010 for payment of the aforesaid amount which was duly served upon defendant however the same CS DJ 57973/16 R R Enterprises v M D of DSC Ltd & Anr. Page No.2 of 13 was neither complied nor replied. Hence, the plaintiff filed the present suit for recovery of Rs.10,64,628/- which includes Rs.8,28,505/- as principal balance amount and Rs.2,36,123/- interest calculated at the rate of 18% p.a. since 31.03.2009 to 11.12.2010.
3. On perusal of record, it is found that vide order dated 15.02.2011, present suit was directed to be treated as ordinary suit instead of suit u/o XXXVII CPC.
4. Defendant filed written statement raising preliminary objections that this suit is bad for want of territorial jurisdiction and plaintiff has not come with clean hands before this court. It is further inter alia stated by the defendants that plaintiff approached the defendant no.2 for the purpose of fabrication and erection of centering and shuttering for Nazafgarh Drain Project vide work order dated 28.11.2008 bearing no.
DSCL/Drain/Shuttering /23/2008 which was signed by Sh Rajeev Mehta for the plaintiff. It is further stated that plaintiff violated the terms and conditions of above said work order by leaving the work incomplete which was later on completed by defendant no.2. It is further stated that the payment of Rs.17,30,128/- was not a part payment instead the same was made to plaintiff after deducting TDS, losses incurred due to bad workmanship and supply of labourers, etc. with regard to the work done by plaintiff at that time. It is further stated that plaintiff filed list of material supplied by the defendant to facilitate the work of plaintiff which were supposed to be returned however the same were neither CS DJ 57973/16 R R Enterprises v M D of DSC Ltd & Anr. Page No.3 of 13 returned nor refunded. In fact, it is stated that vide letter dated 30.04.2009, defendant asked the plaintiff to return the same and in lieu of which, defendant is entitled to recover Rs.48,75,495.74/- from the plaintiff. It is further stated that during the course of negotiations, the plaintiff has written a letter dated 14.05.2010 to the defendant no.2 whereby he demanded Rs.2,80,000/- and not Rs.8,28,505 as is being claimed now. Defendant replied to the said legal notice of plaintiff vide reply dated 11.10.2010. All other averments have been denied in toto.
5. Plaintiff filed replication reiterating the facts of plaint and denying the averments made in the written statement.
6. Thereafter vide order dated 10.05.2011, Ld Predecessor of this court framed the following issues :-
1. Whether the plaintiff is entitled to a decree of recovery of Rs.8,28,505/- being the principal balance amount against the defendant? OPP
2. Whether the plaintiff is entitled to recover interest @ 18% p.a. calculated w.e.f. 31.03.2009 to 11.12.2010 amounting to Rs2,36,123/- against the defendant ? OPP
3. Whether the plaintiff is also entitled for recover pendente lite and future interest @ 18% p.a. or at what other rate? OPP
4. Whether the suit is maintainable as against defendant no.1 in view of PO no. 1 of WS ? OPD
5. Whether this court has no territorial jurisdiction to entertain and try the present suit as per PO No. 2 of WS? OPD
6. Relief.
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7. In support of plaintiff's case, Sh. Rajeev Mehta, Proprietor of plaintiff stepped into the witness box as PW1 by way of his affidavit in evidence Ex. PW1/A and deposed on the lines of the plaint and relied on following documents:
1. Ex.PW1/1 : Original Agreement dt 28.11.2008
2. Ex.PW1/2: Amendment to Original Work order dt 03.11.2009
3. Ex.PW1/3: Photocopy of final bill dt 31.03.2009.
4. Ex.PW1/4(colly): postal courier receipts.
5. Ex.PW1/5: Letter dt 29.03.2009
6. Ex.PW1/6: Letter dt 02.04.2009
7. Ex.PW1/7: Courier receipts.
8. Ex.PW1/8: Letter dt 29.03.2008
9. Ex.PW1/9: Letter dt 29.05.2009
10.Ex.PW1/10: Legal notice dt 01.09.2010 PW1 was cross-examined at length.
8. The plaintiff also examined Sh Yashpal Yadav as PW2 who tendered his affidavit in evidence Ex. PW2/A and relied upon the documents i.e. Ex.PW2/1 Vouchers bearing no.
1791,267,190 against slip no. 17306 dt 03.02.2009, Ex.PW2/2:
Vouchers no. 267 and 2070 against requisite slip no. 17324 dt 06.02.2009, Ex.PW2/3: Voucher no. 4673, 2152, 2257 against requisite slip no. 17337 dt 09.02.2009, Ex.PW2/4: Voucher no.
3900 against requisition slip no. 4285 dt 25.12.2008.
PW2 was cross-examined.
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9. Defendants led their evidence by examining Sh Santosh Kumar as DW2 who tendered his evidence by way of affidavit Ex. D2W1/A and relied on the documents i.e. Ex.D2W1/1. True copy of company's board resolution dt 06.07.2022, Ex.D2W1/2 Photocopy of list of material as on dt 01.05.2009 Mark Y, Ex.D2W1/3 Reply dt 11.10.2010 Mark X. DW2 has been cross-examined at length by Ld. Counsel for the plaintiff.
10. I have heard Ld. Counsels for both the parties and have carefully gone through the materials available on record. My issue wise findings are as under:
Issue No.4 Whether the suit is maintainable as against defendant no.1 in view of PO no. 1 of WS ? OPD
11. Onus of proving this issue was on the defendants. Preliminary Objection No.1 of written statement is that suit of the plaintiff is not maintainable against defendant no.1 as it is not a legal entity. The defendants have not led any evidence to prove this issue. Further, by way of cross examination of plaintiff witnesses, defendants could not be able to establish that defendant no.1 is not a legal entity. It is further pertinent to mention here that in the written statement filed on behalf of defendants, it is mentioned that defendant no.2 is a limited company. In these circumstances, it cannot be said that CS DJ 57973/16 R R Enterprises v M D of DSC Ltd & Anr. Page No.6 of 13 defendant no.1 is not a legal entity. Accordingly, this issue is decided in favour of plaintiff and against the defendants.
Issue No.5 Whether this court has no territorial jurisdiction to entertain and try the present suit as per PO No. 2 of WS? OPD
12. Onus of proving this issue was on the defendants. As per Preliminary Objection No.2 of written statement it is stated that this court has no territorial jurisdiction to entertain and try the present suit. It is contended on behalf of the defendants that defendant no.2 has its registered office at E-9, 3 rd Floor, South Extension Part II, New Delhi-110049 from where they are carrying on their business and the agreement in question was also executed at their office and further the work for which M/s R.R. Enterprise/plaintiff is engaged was also to be executed at Najafgarh Drain Project which also does not lie within the jurisdiction of this Court. On the other hand, as per case of the plaintiff, the plaintiff is having its office at B-359, Street No.4, Majlis Park, Adarsh Nagar, Delhi-110033 and defendants had approached the plaintiff in the month of September, 2008 requesting to do fabrication erection of centering and shuttering for Najafgarh Drain Project. In these circumstances, in view of provisions of Section 20(c) CPC, part cause of action arose at the office of plaintiff. Thus, it cannot be said that this court has no territorial jurisdiction to entertain and try the present suit. This issue is, accordingly, decided in favour of plaintiff and against the defendants.
CS DJ 57973/16 R R Enterprises v M D of DSC Ltd & Anr. Page No.7 of 13 Issue No.1 to 3 Whether the plaintiff is entitled to a decree of recovery of Rs.8,28,505/- being the principal balance amount against the defendant?
Whether the plaintiff is entitled to recover interest @ 18% p.a. calculated w.e.f. 31.03.2009 to 11.12.2010 amounting to Rs2,36,123/- against the defendant ?
Whether the plaintiff is also entitled for recover pendente lite and future interest @ 18% p.a. or at what other rate?
13. All these issues are taken up together being inter connected and can be decided simultaneously. Onus of proving all these issues was on the plaintiff.
14. PW1/Sh. Rajeev Mehta, proprietor of M/s R.R. Enterprises, by way of his affidavit in evidence Ex. PW1/A, deposed on the lines of plaint. During cross examination, PW1 deposed that they do not maintain any records with regard to execution of work done by them. The measurement book is with the site engineer/project in-charge of defendant on which measurement is recorded which is done jointly by plaintiff and staff of the defendant. They maintain and possess only bills as approved by the engineer. The labour and material used in work was not belonging to them but was provided by defendant. PW1 did not have any other documentary proof to show that plaintiff carried out the work of value of Rs.25,58,633/- except the bills. PW1 denied the suggestion that payment of Rs.17,30,128/- has been made after making the statutory deduction of TDS.
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15. PW1 admitted that the list of material was supplied to plaintiff by defendant Ex. PW1/D1 and further admitted that whatever material supplied by the defendant to plaintiff, was to be returned on completion of project except the material which was consumed. PW1 has not been able to point out any material which has been consumed as mentioned in Ex. PW1/D1. PW1 further admitted that the plaintiff has received a letter dated 30.04.2009 Ex. PW1/D2 from the defendant and no reply to this letter has been given by plaintiff. PW1 further admitted that plaintiff has written a letter dated 14.05.2010 to the defendant which bears signature of PW1 and same is Ex. PW1/D3. He admitted that there has been no agreement in writing with regard to payment of any interest by the defendant to the plaintiff.
16. Plaintiff examined Sh. Yashpal Yadav, Chief Executive Officer of plaintiff firm as PW2 who supported the case of plaintiff and further testified that the requisition slips of defendants Ex. PW2/1 to Ex. PW2/4 are forged and fabricated vouchers.
17. During cross examination, PW2 deposed that he left the employment of plaintiff in the year 2012 and the documents Ex. PW2/1 to Ex. PW2/4 were in his possession and custody. He volunteered that the entire record pertaining to this project was available with the plaintiff except the requisition slips Ex. PW2/1 to Ex. PW2/4 which were in his possession and custody. PW2 further deposed that he has mentioned about the fabrication, forgery etc of the vouchers on the basis of a statement prepared CS DJ 57973/16 R R Enterprises v M D of DSC Ltd & Anr. Page No.9 of 13 by him at the time of reconciliation of material and he has not filed the said statement on record.
18. The defendants examined Sh. Santosh Kumar Gupta as DW2 who deposed on the lines of written statement filed on behalf of the defendants. During cross examination, DW2 admitted that plaintiff's job was to supply of the men power and that the defendant company was having security arrangement upon the site. Material was issued on acknowledgement of plaintiff from time to time and major portion of the material was fabricated by the party, however, no receipt was filed by the defendant in this regard.
19. Analysis of entire evidence of both the parties and material placed on record shows that plaintiff has claimed a recovery of Rs.10,64,328/- for fabrication erection of centering and shuttering for Nazafgarh Drain Project given by the defendants against work order bearing no. DSCL/ Drain/ Shuttering/23/2008 and out of total amount of Rs.25,58,633/- for final bill dated 31.03.2009, defendants made part payment of Rs.17,30,128/- to the plaintiff. It is further averred that the remaining balance of Rs.8,28,505/- with interest @ 18% p.a. is still outstanding on the part of defendants. On the other hand, the case of defendants is that the payment of Rs.17,30,128/- was made by the defendants as full and final payment after making necessary deductions as the plaintiff had not completed the work and further retained the material supplied by the defendants which was supposed to be returned by the plaintiff. It is further CS DJ 57973/16 R R Enterprises v M D of DSC Ltd & Anr. Page No.10 of 13 the case of defendants that the defendant no.2 has calculated the value of the material which the plaintiff has failed to return despite repeated demands and it amounts to Rs.48,75,495.74.
20. During cross examination of PW1 Sh. Rajeev Mehta, he admitted that the plaintiff received a letter dated 30.04.2009 from the defendant Ex. PW1/D2 and further that no reply to this letter has been given by plaintiff. Further, DW2 deposed in his affidavit Ex. D2W1/A that plaintiff had written a letter dated 14.05.2010 Ex. PW1/D3 to the defendant no.2 whereby he claimed Rs.2,80,000/- and not Rs.8,28,505/-.
21. Perusal of document Ex. PW1/D2 shows that defendants had demanded the outstanding material from the plaintiff vide Ex. PW1/D2 so as to finalise the bill. PW1 admitted in his cross examination that the plaintiff had received a letter dated 30.04.2009 Ex. PW1/D2 from the defendant and no reply to this letter has been given by plaintiff. PW1 further admitted that plaintiff had written a letter dated 14.05.2010 to the defendant Ex. PW1/D3 which bears his signature. Perusal of letter dated 14.05.2010 Ex. PW1/D3 shows that plaintiff had demanded Rs.2,80,000/- from the defendants for the work done in terms of work order No. DSCL/Drain/Shuttering/23/2008. He also admitted that there has been no agreement in writing with regard to payment of any interest by the defendant to the plaintiff. It is pertinent to mention here that documents Ex. PW1/D2 and Ex. PW1/D3 were put by defendants to PW1/Sh. Rajeev Mehta.
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22. After scrutiny of examination and cross examination of plaintiff as well as defendant witnesses, it has come on record that amount of Rs.2,80,000/- to be paid by defendants to the plaintiffs, is not disputed by the defendants. Although the defendants claimed an amount of Rs. 48,75,495.74 from the plaintiff i.e. the value of the material which the plaintiff has failed to return, but no counter claim has been filed by the defendants for the recovery of such amount. In these circumstances, plaintiff is entitled to recover an amount of Rs.2,80,000/- from the defendants. The testimony of PW2 is not believable as he has produced the documents from his custody even when he is no more in the employment of the plaintiff company. To most of the questions, he has shown ignorance. The plaintiff company by way of examination of the PWs has not filed the original bill Mark A, on which claim of the plaintiff company is based.
23. The plaintiff has also claimed interest @ 18% p.a. calculated w.e.f. 31.03.2009 to 11.12.2010 amounting to Rs2,36,123/- along with pendente lite and future interest @ 18% p.a. However, the rate of interest as claimed by the plaintiff is too exorbitant and the interest @ 6% per annum would meet the ends of justice. Since the plaintiff is entitled to recover only Rs.2,80,000/- from the defendants, interest at such rate shall be paid by the defendants on said sum for the period as mentioned herein under the relief.
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24. All these issues are accordingly decided in favour of plaintiff and against the defendants.
Relief
25. In view of my discussion on issue no.1 to 3 herein above, suit of the plaintiff is decreed for a sum of Rs.2,80,000/- along with interest @ 6% per annum from the date of filing of the suit till recovery of decretal amount.
26. Cost of the suit is also awarded in favour of plaintiff and against the defendants.
27. Decree sheet be prepared accordingly.
28. File be consigned to record room after due compliance.
Announced in the open Court on 01.02.2024 (Kishor Kumar) ADJ-04, North, Rohini Courts, Delhi/01.02.2024 CS DJ 57973/16 R R Enterprises v M D of DSC Ltd & Anr. Page No.13 of 13