Delhi District Court
M/S Parhlad Singh vs M/S Har Charan Dass Gupta on 7 July, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No.205/2014
IN THE MATTER OF:
M/s Parhlad Singh,
Proprietor Shri Parhlad Singh, Paty Contractor,
S/o Shri Asha Ram,
R/o RZ158, Bagh Wali Gali,
New Dharampura Extension,
Najafgarh, Delhi110043 ........plaintiff
Versus
M/s Har Charan Dass Gupta,
Regd. Office at 103, Sai Bhawan,
Ranjeet Nagar, Commercial Complex,
New Delhi110008
Service through Director/owner/partner/proprietor ........Defendant
Date of Institution: 13.05.2005
Date of Reserving for Judgment: 27.05.2014
Date of Judgment : 07.07.2014
SUIT FOR RECOVERY OF RS. 1,63,416.22
JUDGMENT:
1. Vide this Judgment, I shall decide a suit for recovery of Rs. 1,63,416.22 filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that the plaintiff the defendant is the authorized contractor of the Delhi Development Suit No. 205/2014 Page No. 1 of 21 Authority and had been doing construction work of the D.D.A flat and had been engaging the services of the plaintiff for various purposes in his D.D.A plots/flats construction work as the plaintiff is a paty contractor and doing work for the defendant on contract basis. It is further submitted that the defendant gave a contract of digging the earth and to remove the earthen and to shift the earthen from 400 LIG Houses, situated at GroupIII, GH3, Sector28, Rohini, Delhi85 as per Agreement dated 5.11.2003 signed by the authorized representative of the defendant namely Shri Balwan Singh, R/o H.No. 31, Amba Enclave, Sector9, Rohini, Delhi85 and the plaintiff. The plaintiff completed the work of the defendant of digging the earth, remove the earthen and to shift the earthen to some other place in time as per the terms and conditions of the agreement settled between the plaintiff and the defendant and the plaintiff completed the work for the defendant in November, 2004 in the total labour payment amount of Rs. 5,67,146.22. It is further submitted that out of total labour payment of Rs. 5,67,146.22, the defendant made a part payment of Rs. 4,13,000/ to the plaintiff and for the balance labour payment of Rs. 1,54,146.22, the defendant assured to make the payment in due course but a balance payment of Rs. 1,54,146.22 is still due upon the defendant of the plaintiff and the defendant had withholding this payment of the plaintiff without Suit No. 205/2014 Page No. 2 of 21 any reasonable cause or reason and the defendant had been withholding the labour payment of the plaintiff illegally, unlawfully and forcibly and unauthorisedly. It is further submitted that Shri Sunil Kumar Mishra, site Engineer of the defendant had conducted the detailed inspection of the work done by the plaintiff was also inspected by Shri Ashok Kumar, site Engineer of the defendant and Shri Ashok Kumar himself has prepared a bill of Rs. 4,79,040/ for the work done by the plaintiff upto 6.10.2004. It is further submitted that the plaintiff has visited the defendant and requested the defendant to make the balance payment /labour payment of Rs. 1,54,146.22 to the plaintiff, but the defendant till date has not made the balance labour payment to the plaintiff despite repeated request and The plaintiff also sent a letter dt. 07.02.2005 to the defendant through courier and also sent a letter to the D.D.A through by hand, which have duly been received by the defendant and the D.D.A but till date the defendant has not made the balance labour payment of Rs. 1,54,146.22 to the plaintiff. The plaintiff has served a legal notice dated 23.2.2005 upon the defendant, but the defendant did not make the payment, Hence the present suit is filed.
3. On the other hand the the defendant in his WS has contended that the defendant is a contractor and has been executing works for various authorities including DDA. It is, however, denied that the Suit No. 205/2014 Page No. 3 of 21 defendant had been engaging the services of the plaintiff for various purposes as alleged in this para or that the plaintiff has been doing work for the defendant on contract basis as alleged. Further the defendant denied that any contract of digging, removing and shifting of the earth from the alleged site was executed between the parties th rd on 5 of November, 2003. In fact, in the legal notice dated 23 of th February, 2005, the agreement was alleged to be dated 5 of January, 2003. There was no agreement between the defendant on one side and plaintiff on the other. Further the defendant denied having made any payment whatsoever to the plaintiff much less as alleged in this para. Since no work was done by the plaintiff for the defendant. It is further contended that receipt of the legal notice rd dated 23 February, 2005 is not disputed though its contents are not admitted to be correct and are denied by the defendant. A reply th dated 17 March, 2005 was accordingly sent to the counsel for the plaintiff. The defendant refers to and relies upon the contents of the said reply. The defendant is not liable for any amount whether by way of principal or by way of interest at any rate whatsoever unto the plaintiff. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed replication to the written statement filed by the Suit No. 205/2014 Page No. 4 of 21 defendant. In his replication the plaintiff has reaffirmed the contents in the plaint and denied all the allegation made by the defendant in their written statement and further submitted that the suit of the plaintiff be decreed.
5. From the pleading of the parties following issues were framed vide order dt. 09112005:
i) Whether the plaintiff is entitled to get a decree of recovery of sum of Rs. 1,63,416.22/ against the defendant? OPP
ii) Whether the plaintiff is entitled to get an interest on the aforesaid amount, if so, at what rate? OPP
iii) Whether there is any contract executed between the plaintiff and the defendant? OPP
iv) Relief.
6. To prove his case plaintiff has examined himself as PW1. PW1 has filed his evidence by way of affidavit Ex. PW1/14. In his affidavit PW1 has reiterated the facts mentioned in the plaint and relied upon the following document:
i) The copy of agreement dt. 05112003 is Ex. PW1/1.
ii) Copy of Bill dt. 05102004 is Ex. PW1/2 colly. Iii) Copy of measurement of work done dt. 30122004 is Ex. PW1/3.
iv) Copy of final bill dt. 31122004 is Ex. PW1/4. Suit No. 205/2014 Page No. 5 of 21
v) Copy of letter dt. 22092004 and 23092004 are Ex. PW1/5 & 6 respectively.
vi) Copy of letter dt. 07022005 are Ex. PW1/7 & 8, courier receipt is Ex. PW1/9.
Vii) Marriage invitation card of the marriage of the daughter Sh. Parhlad Singh is Ex. PW1/10.
Viii) Copy of legal notice dt. 23022005 is Ex. PW1/11, the postal receipts are Ex. PW1/12 colly, UPC receipt are Ex. PW1/13.
7. Further the plaintiff has examined Sh. Roop Narain Assistant DDA, RPD12, Sector7, Rohini Delhi as PW2 who have summoned record i.e. Letter dt. 18102003, 06122004 and letter dt. 07022005 Ex. PW2/1 to PW2/3. Further the plaintiff has examined Sh. Ashok Kumar as PW3 . Further the plaintiff has examined Sh. Sunil Kumar Mishra who relied upon the document already Ex.PW1/3 and PW1/4. Further the plaintiff has examined Sh. Balwan Singh as PW4 who relied upon the documents Ex. PW4/1 which is authorization letter dt.1010 2003.
All the plaintiff witness were also crossexamined by the Ld. counsel for the defendant. During crossexamination PW1 was confronted with documents Ex. PW1/D1 which is reply dt. 1703 Suit No. 205/2014 Page No. 6 of 21 2005.
8. On the other hand the defendant has examined Sh. Lalit Mittal as DW1 who filed his evidence by way of affidavit Ex. DW1/A. In his affidavit DW1 has reiterated the facts mentioned in his WS and relied upon document Ex. DW1/1 which is copy of order dt. 28022009 passed by the MM Court. The DW1 was also cross examined by the Ld. counsel for the plaintiff.
9. I have heard the counsel for both the parties and gone through the record carefully and perused the relevant provision of law.
10.My issue wise finding is as under:
11. Issue No. 1 Whether the plaintiff is entitled to get a decree of recovery of sum of Rs. 1,63,416.22/ against the defendant? OPP Issue No. 3 Whether there is any contract executed between the plaintiff and the defendant? OPP Issue no. 1 and 3 being inter related are taken up and decided together.
Before discussing case of the party it would be relevant to discuss the evidence led by the parties.
12.Plaintiff examined itself as PW1 and stated in his cross examination that the defendant is a company and he stated that Suit No. 205/2014 Page No. 7 of 21 the same after seeing the letterhead of the defendant. That vide agreement dated 05.11.2003 defendant gave the work of digging of earth etc. to the plaintiff. The said agreement was singed by Sh. Balwan Singh on behalf of the defendant as a partner authorized to sign on behalf of the company. He was aware on 23.02.2005 that the agreement on behalf of defendant was signed by Balwan Singh and this was also informed to the counsel of PW1. He did not see any letter of authority in favor of Sh. Balwan Singh accept the document Ex. PW2/1. PW1 did not give any bill to Balwan Singh during the execution of the work done by the plaintiff. He also stated that he is not having any bill countersigned by Balwan Singh. He stated that he did not write any letter to the defendant company that Balwan Singh was not countersigning the running bill. Payment was made by the defendant in cash. Defendant used to measure work for recording it is the measurement book. The measurement book was not signed by PW1. The Bill were prepared by Sh. Ashok Kumar, engineer of the defendant company. The last bill was submitted on the letterhead of PW1 to the defendant. The measurement was done jointly by PW 1 and site engineer which was signed by PW1 legal notice dated 23.02.2005 was replied vide reply dated 17.03.2005 Ex. PW1/D1. He stated that there Suit No. 205/2014 Page No. 8 of 21 was no agreement between the parties for providing of a tractor upto third RA. A sum of Rs. 4,79,040.90 was paid by the defendant to the plaintiff. He stated that he maintained a copy for noting down the payments receipt for the defendant but it has not produced the same. He stated that there was no agreement between the parties for payment of interest at any rate of whatsoever.
13.PW2, Sh. Roop Narain, proved the document Ex. PW2/1 to Ex. PW2/3. He stated in his cross examination that the document Ex. PW2/1 was written for the purpose of DDA.
14.PW3, Ashok Kumar, stated in his evidence that he worked under Sh. Balwan Singh for M/s Harcharan Das Gupta as a site engineer at Sector 28, Rohini for blocks 1, 2 and 3. Plaintiff was doing the job of earth work excavation and refilling with the excavated earth. PW 3 used to do the billing work for the same. He stated that the document Ex. PW1/2 and Ex. PW1/3 bear his signatures at point A. He stated that he used to prepare the bills and used to forward it after signing to Sh. Balwan Singh, authorize signatory of the company and thereafter the payments used to be released by the defendant to the plaintiff. He stated that plaintiff was partly paid and Rs. 479040/ was outstanding when PW3 left the company sometimes in the month of June Suit No. 205/2014 Page No. 9 of 21 and July, 2005. He stated that thereafter Mr. Sunil Kumar Mishra took over from him. He stated that the dressing the work was not there in the contract between the parties but there was an urgency so the work was got done by the plaintiff at the rate of Rs. 200 per hour by hiring the tractor for 70 hours. He stated in his cross examination that he is not having any letter of appointment issued by the defendant company but was appointed by Sh. Balwan Singh for working for the company at the site in question. Sh. Balwan Singh used to pay salary PW3. He stated that he is not aware as to what authority Sh. Balwan Singh had from the defendant company when PW 3 left the job. He stated that Sh. Balwan Singh had a signing authority on behalf of the company but he did not know to what extent Sh. Balwan Singh had the authority. He did not see Ex. PW2/1 or any other document regarding the authority given to Sh. Balwan Singh by the defendant company. Sh. Balwan Singh gave instruction for engaging the tractor. The rate was settled by Sh. Balwan Singh. PW3 came to know of difference between Sh. Balwan Singh and the defendant company later on. PW3 came to depose at the request of the plaintiff.
15.PW3 Sh. Sunil Kumar Mishra stated that he was working with the defendant company in the year 20042005 as a site engineer Suit No. 205/2014 Page No. 10 of 21 and was engaged by Sh. Prahlad Singh for digging and removing and filling the soil at the site in question. He used to get the work executed from the plaintiff. The document Ex. PW1/3 and Ex. PW1/4 bear his signature at points A and B and were verified by him. Sh. Balwan Singh was the site incharge and was working for the defendant company. He stated in his cross examination that he is not having any letter of appointment issued by the defendant. He did not receive the summon to appear as a witness in the present case himself but received the telephone call from the people living near his earlier residence in Rohini, Delhi for appearing in court as a witness. He left Rohini in the year 2007. He confirmed about the particulars of the summons from the plaintiff. He came to Delhi by train on 11.07.2013 and nobody has paid for the expenses borne by him for the same. Sh. Ashok Kumar Dheeman was his predecessor. Sh. Dheeman was not working with the defendant when PW3 Sh. Sunil Kumar Mishra joined. Sh. Ashok Kumar Dheeman was also an employee of Sh. Harcharan Das Gupta although no letter of appointment in his favor, issued by defendant, was seen by PW3 Sh. Sunil Kumar. He did not know who was paying the salary to Sh. Ashok Kumar. Sh. Balwan Singh appointed him and used to pay his salary. He never saw any document Suit No. 205/2014 Page No. 11 of 21 pertaining to the authority of Sh. Balwan Singh. He stated that he did not see any other document of authority in favor of Sh. Balwan Singh accept Ex.PW2/1 which was withdrawn by the defendant on 06.12.2004 vide Ex. PW2/2. The work done by the plaintiff was entered in the measurement books maintained by the DDA. No record was kept by the defendant of the work executed by the plaintiff. Mr. Balwan Singh gave him the authority to sign on the behalf of the defendant he did not know if Sh. Balwan Singh had any authority to sign any documents on behalf of the defendant with the plaintiff. Record of work executed by the plaintiff was maintained in the office of the defendant. Nobody used to sign it on behalf of the defendant. The plaintiff used to submit the bills in the office of the defendant. He did not know that there was dispute between Sh. Balwan Singh and the defendant. He knew that authority of Sh. Balwan Singh was withdrawn on 06.12.2004 due to disputes between him and the defendant.
16.PW4, Sh. Balwan Singh stated in his statement that he was the authorized signatory for M/s Harcharan Das Gupta between October to December 2004. On 05.11.2003 the plaintiff was awarded by the defendant the work of excavation at Sector 28, Rohini. The agreement between the party was signed by PW4 Suit No. 205/2014 Page No. 12 of 21 being authorized signatory of the defendant. He stated that Ex.PW1/2 bear his signatures at point A. The plaintiff executed the work awarded to him satisfaction of the defendant and was paid about Rs. 4 lakhs out of the bills raised of about Rs. 5.50 lakhs. He stated that vide authorization letter Ex. PW4/1 dated 10.10.2003 which was signed by Sh. D.R. Mittal. He was authorized on behalf of the defendant to sign all the documents on his behalf. He stated in his cross examination that he stated that only Ex.PW4/1 was given by the defendant. The authority was terminated because the defendant did not want to continue with the work. He stated that his brother Naresh Kumar was a supervisor at a Rohini site. He stated that his check for a sum of Rs. 12 lakh was in cash and the amount was spent in connection with the site expenses and account thereof was given to Sh. D.R. Mittal.
17. Defendant examined Sh. Lalit Mittal as DW1 who stated in his cross examination that currently there are two partners in the firm M/s Harcharan Das and in the year 20032004 there were four partners in the firm, namely, myself, Rajiv Mittal, Vimal Mittal and D.R. Mittal. Sh. Balwan Singh was never a partner in the firm. Sh. Balwan Singh is appointed by PW1 for doing office job relating to DDA and used to affirm all the work relating to the Suit No. 205/2014 Page No. 13 of 21 clients of the firm. Sh. Balwan Singh was given authority from 2003 December 2004. He was not an employee of the firm but was authorised temporarily to do paper work relating to DDA. He did not know Sh. Prahlad Singh as Sh. Prahlad Singh did not work for the firm. He denied that Sh. Sunil Kumar Misha and Ashok Kumar were working on the project site as site engineers . He denied execution of agreement Ex. PW1/1. Sh. Balwan Singh was not authorized to execute agreement dated 05.11.2003 on behalf of the defendant firm and had no concerned with the execution of the project. The work was awarded to the plaintiff without permission of the firm. Sh. Balwan Singh, committed several frauds with the defendant for which legal proceedings are pending against him in Rohini Courts. The defendant maintained account and usual business accounts for said project at Rohini were also maintained. He stated that he has not been able to locate the account books for the period of 20032004.
18. The case of the plaintiff is that he had worked for the defendant in terms of the agreement dated 5/11/2003 Ex. PW1/1. The defendant had made part payment for the same however, remaining payment has yet not been paid by the defendant, hence he filed this suit.
Suit No. 205/2014 Page No. 14 of 21
19.On the other hand, the case of the defendant is that the defendant firm has no dealings with the plaintiff and the alleged agreement was never entered into by the defendant. Also, the agreement dated 5/11/2003 though was signed by the authorised agent of the defendant but the said agent acted beyond his scope of agency in entering into a contract with the plaintiff. Thus, the defendant is not liable to pay anything to the plaintiff.
20.At this stage it would be worthwhile to discuss certain provisions under the Indian Contract Act, which are as under:
186. Agent's authority may be expressed or implied The authority of an agent may be expressed or implied.
187. Definitions of express and implied An authority is said to be express when it is given by words spoken or written. An authority is said to be implied when it is to be inferred from the circumstances of the case; and things spoken or written, or the ordinary course of dealing, may be accounted circumstances of the case.
188. Extent of agent's authority -
An agent, having an authority to do an act, has authority do every lawful thing which is necessary in order to do so such act.An agent having an authority to carry on a business, has authority to do every lawful thing necessary for the purpose, or usually done in the course, of conducting such business.
189. Agent's authority in an emergency An agent has authority, in an emergency, to do all such acts for the purpose of protecting his principal from loss and Suit No. 205/2014 Page No. 15 of 21 would be done by a person or ordinary prudence, in his own case, under similar circumstances.
196. Right of person as to acts done forhim without his authority, effect of ratification Where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts. If he ratifies them, the same effects will follow as if they had been performed by his authority.
197. Ratification may be expressed or implied Ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts are done.
215. Right to principal when agent deals, on his own account, in business of agency without principal's consent If an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him.
237. Liability of principal inducing belief that agent's unauthorized acts were authorized When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations, if he has by his words or conduct induced such third persons to believe that such act and obligations were within the scope of the agent's authority.
21.At this juncture it would be relevant to reproduce the contents of Ex. PW4/1 vide which the defendant gave the authority to Sh. Balwan Singh, the relevant paragraph in this regard is as under: Suit No. 205/2014 Page No. 16 of 21
" We hereby authorize Sh. Balwan Singh s/o Lt. Sh. Naubat Ramon behalf of us to sign all documents being maintained at site as well as signing of bill prepared and received of cheque for the same, whose signatures are attested below".
22.In the instant case admittedly, the work at the site in Rohini of digging of earth etc. took place. As per the notings on the bottom left side corner of the letter Ex. PW4/1 given by the officials of DDA it is manifest that the plaintiff worked at the suit site in Rohini. It has not been stated and proved by the defendant if the plaintiff did not do the said work at the site then who did it. Thus, clearly, the plaintiff did work at the site in terms of the agreement dated 5/11/2003 Ex. PW1/1. Admittedly, Sh. Balwan Singh was an agent of the defendant and in this regard the defendant had sent a letter Ex PW4/1 to the DDA. Although, as per the said letter the defendant did not authorise SH. Balwan Singh to enter into any contract/agreement but obviously had SH. Balwan Singh not been authorised to enter into the agreement and sign the agreement dated 5/11/2003 Ex. PW1/1 on behalf of the defendant with the plaintiff then obviously the work carried out by the plaintiff at the site would not have been carried out by the plaintiff. Thus, clearly the defendant had given Sh. Balwan Singh an implied authority to enter into the agreement dated 5/11/2003 Suit No. 205/2014 Page No. 17 of 21 Ex. PW1/1. Further, the act of SH. Balwan Singh of entering into an agreement with the plaintiff on behalf of the defendant was ratified by the defendant by making part payment to the plaintiff. The contention of the defendant that the defendant itself did not make partpayment to the plaintiff is of no assistance to the defendant since it has been proved by the evidence led by the plaintiff that SH. Balwan Singh made part payment to the plaintiff. Also, in the crossexamination of SH. Balwan Singh, PW4 certain questions regarding criminal case pending against him in Rohini were put and in reply to one of those questions PW4 stated that a sum of Rs. 12 Lacs were withdrawn by him but were spent for the work done at site and statement of the said spendings were given to the defendant. It is unbelievable that when Sh. Balwan Singh had been dealing with the money of the defendant and that too to the tune of Rs. 12 lacs then obviously he had some authority, if not in writing then orally in this regard and obviously then the part payment made by Sh. Balwan Singh to the plaintiff was within his agency. Thus, clearly, there exist a contractual relationship between the parties.
23.The contention of the defendant that the bills Ex. Pw1/2 colly, PW1/3 & PW1/4 signed by PW3 SH. Ashok Kumar, PW3 SH. Sunil Kumar Mishra and PW4 SH. Balwan Singh were signed Suit No. 205/2014 Page No. 18 of 21 without any authority is without any merits since it has been proved in the evidence of the two PW3 and PW4 that PW3 were appointed by PW4 and as discussed above PW4 SH. Balwan Singh had certain implied authorities which were never revoked or curtailed by the defendant. Also, nothing has been brought on record by the defendant to show that Sh. Ashok Kumar and SH. Sunil Kumar Mishra never worked at the site in Rohini.
24.The contention of the defendant that there was no term in the agreement dated 5/11/2003 Ex. PW1/1 regarding engaging of the tractor is without any merits as in the evidence of PW3 Sh.Ashok Kumar it has been proved that there was an oral contract in this regard.
25.The other contention of the defendant that it is unbelievable that in todays time a person would come all the way by train for deposing without being paid even a single penny for the case of some other person is unbelievable and thus, the evidence of PW3 Sh. Sunil Kumar Mishra is unbelievable is without any merits as merely because a person would come all the way by train for deposing without being paid even a single penny for the case of some other person would not mean that he has some ulterior motives as human conduct varies from person to person.
26.The defendant has not even brought any site record and has not Suit No. 205/2014 Page No. 19 of 21 even summoned record from DDA to rebutt the case set up by the plaintiff.
In view of the foregoing discussion, the plaintiff has successfully proved his case and the defendant has failed to rebut the case of the plaintiff.
27. In the prayer clause the plaintiff has prayed for the recovery of Rs. 1,63,416.22 whereas he has proved that he is entitled to recover Rs. 1,54,146.22 in terms of the bill Ex. PW1/4 as remaining part payment.
Thus, in view of the foregoing discussion, the plaintiff is entitled to recovery of Rs. 1,54,146.22/ from the defendant. These issues are decided accordingly.
28.Issue No. 2 Whether the plaintiff is entitled to get an interest on the aforesaid amount, if so, at what rate? OPP The plaintiff has also claimed the pendentelite and future interest on the decreetal amount @ 12 % p.a. which in my opinion is very exorbitant and unreasonable. According to me, considering the current market rate the plaintiff is entitled to pendentelite and future interest @ 9 % p.a. on the decreetal amount from filling of the suit till the actual realization on the decreetal amount. This issue is decided accordingly. Suit No. 205/2014 Page No. 20 of 21
29. Relief:
Hence a decree, for the recovery of Rs. 1,54,146.22/ along with pendentelite and future interest at the rate of 9 % p.a. from filling of the suit till the actual realization of the decreetal amount, is passed in favour of the plaintiff and against the defendant. Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria)
open court on 07.07.2014 Civil Judge/Central05/Delhi
Suit No. 205/2014 Page No. 21 of 21