Delhi District Court
Suit No. 219/14 Jeyashree C. vs . M/S Analec Infotech Pvt. Ltd. on 23 May, 2015
Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
IN THE COURT OF SH. NAVEEN ARORA
ADJ06: SOUTH DISTRICT: NEW DELHI
Suit No. : 219/14
Ms. Jeyaashri. C.
Sole proprietor, M/s DMS Designs,
D6, LGF, Amar Colony, Lajpat NagarIV,
New Delhi110024. ..........................Plaintiff
VS
M/s Analec Infotech Private Limited
90/31B, First Floor,
Malviya Nagar, New Delhi.
Through its Managing Director ......................Defendant
Date of institution of Suit : 06.05.2009
Date on which order was reserved : 30.03.2015
Date of Judgment : 23.05.2015
Vide this common judgment, I shall dispose of the suit filed by the
plaintiff and the counter claim filed by the defendant.
SUIT FOR RECOVERY OF RS. 10,99,355/
COUNTER CLAIM OF DEFENDANT FOR RS.6,87,899/
1.As per the case of the plaintiff, plaintiff is a qualified Architect and has professional qualifications. The parties initially entered into a prolonged discussion regarding the interior work to be carried on in Park Centre Building, Gurgaon which was being taken on lease by the defendant from BPTP and was a newly constructed building in which some construction work was still in progress. The parties entered into a written agreement dated 10.09.2007 for the work of design consultancy, project management, interior finishing, engineering services etc. at units 624, 625, 626 & 628 at Sixth Floor, Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
Park Central, NH 8, Gurgaon, Haryana. Some part of the scheduled work was to be done by the plaintiff, some part was to be got done from other sub contractors by the plaintiff and some part of the related work like carpenting, furniture etc. was to be got done by the defendant from third parties. The plaintiff had done the work of designing and execution of interior and engineering service for the defendant at premises at 6th floor, BPTP Park Centre, Gurgaon, Haryana. When the plaintiff was asked to execute the work, it was revealed that BPTP had not completed the work of construction which was being carried on and they would be taking a few more days in completing the work. The premises was scheduled to be handed over to the defendant by BPTP on 15.09.2007 which was handed over only on or about 15.10.2007 and that too without electricity and water supply. Even thereafter, there were various problems like that of water supply and elevator in the premises.
2. The plaintiff raised bills dated 13.11.2007, 17.12.2007 and the final bill on 30.03.2008. After receipt of the final bill, the defendant sent a false and frivolous notice dated 11.04.2008 through Sh. Navin Jain, Advocate in which false and baseless contentions were raised by the defendant for the first time which was duly replied to by the plaintiff through his Advocate on 19.05.2008 reiterating that the plaintiff was entitled to receive and the defendant was liable to pay a sum of Rs. 5,24,180/ towards extra work executed at site, the completion amount of Rs. 1,25,000/ and retention amount of Rs. 3,22,625/ as per contract. The plaintiff claimed that a sum of Rs. 9,71,805/ was outstanding and was payable by the defendant to the plaintiff. The plaintiff offered, vide the said reply to notice to carry out his obligations as per the contract, but till date no specific Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
complaint or date for redressal of that complaint was communicated to the plaintiff by the defendant. The defendant did not respond to the said reply notice and further continued to neglect making payment of the outstanding amounts.
The plaintiff had to carry out the following additional works:
a) Raised flooring/with jack in server room. Make:
Unifloor.
b) Wall paper in reception area make F & F.
c) Wall graphics in cafeteria make: 3M
d) Frosted film: 3M
e) Mirror cladding in cafeteria
f) Toughened glass door on patch fitting
g) Glass writing boards with SS Studs & White Vinyl (meeting rooms, cabins, conference)
h) AC works high wall split/copper pipe
i) Electrical wiringHVAC
j) Frame work : high wall split
k) Ac works: Drain pipe
l) Signage : MDF
m) Removing and refixing of AC split units
3. In the aforesaid facts and circumstances, the plaintiff was constrained to serve a legal notice of demand dated 22.01.2009 through Sh. T.S. Ahuja which was sent by Registered Post dated 23.01.2009 to the defendant calling upon the defendant to pay a sum of Rs. 9,71,805/ alongwith interest @ 15% per annum within ten days of receipt of the notice. The defendant was duly informed that in case of failure of the defendant to make the payment of Rs. Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
9,71,805/ with interest @ 15% per annum within ten days of receipt of notice, the plaintiff shall initiate legal action against the defendant and the defendant shall be responsible for the costs and consequences. The said notice was duly served on the defendant. However, the defendant did not make any payment to the plaintiff and sent a false and baseless reply through Sh. Naveen Kumar, Advocate of Naashree Associates dated 04.02.2009. Hence, the present suit.
4. Defendant contested the suit and filed written statement alongwith counterclaim taking preliminary objections of nonmaintainability of the suit, challenging the territorial jurisdiction of this court, misjoinder and nonjoinder of the necessary parties.
5. It was stated on merits that it is a subsidiary of Analec Singapore, PTE Ltd. Defendant denied that plaintiff had done the work of designing and execution of the interior and engineering services within the time frame as per agreement and as per specifications and quality as promised. It is stated that premises was handed over to the plaintiff on 13.10.2007 and plaintiff was supposed to start the work from 15.10.2007 for completion of the same on 05.12.2007 wherein the plaintiff failed because of lack of management and control on the project. On their request, the time was extended and finally on 25.02.2008, when the defendant company took the possession, there were significant deviations from the specifications. They damaged the carpet flooring, wood work and partitions. The final date of completion of work was 07.02.2008 as agreed between the parties. Hence, the defendant was entitled to claim damages @ Rs. 10,000/ per day (from 08.02.2009 till Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
23.02.2009). It is stated that the grievance of the plaintiff regarding electricity and water supply was sorted out immediately when reported. The elevators were working perfectly. The plaintiff left the site on various times which delayed the process and did not inform the defendant about the correct progress of the work. It is submitted that defendant paid Rs. 1,38,134/ as detention charges to the Customs for detaining the furniture and carpet flooring imported because of delay in the project and was further compelled to make the payment of WCT on behalf of the plaintiff to the extent of Rs. 1,22,984/. The defendant had to bear the rent for two of his premises for two months and suffered loss of business. It is stated that problem of water leakage within pantry area of the site due to the building owner was not such a big problem to derail the project and it had impact on less than 2% of the site and the same was addressed within 3 days period. No incident of theft was ever communicated to the defendant company or to private security agency which was serving there. The plaintiff never submitted any bill and receipts for expenses incurred and despite this, the defendant made a total payment of Rs. 27,50,000/ to the plaintiff from 10.09.2007 till 22.01.2008.
6. On the above mentioned grounds, the defendant prayed for dismissal of the suit and raised counterclaim. In the counter claim the defendant pointed out various deviations from the agreed plan which are as follows:
i) Small pantry counter was provided to that of agreed size.
ii) Kitchen cabinet and table tops were of very poor Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
quality.
iii) Deviations on the electrical wiring of the desks on the main floor (for which defendant had to incurred extra cost by building concealed raceways for running electric wire and network cables).
iv) Very shoddy work was done with wires sprouting out from the floor every where below each desks without any regard alignment and exact positioning.
v) Faulty network and electric sockets were provided in the finance and administration rooms leading behind one desk out of four plan desk there for which defendant had to incurred extra cost for connecting the same.
vi) Poor quality gypsum partitions were provided which developed crackes all over and seems to be an unstable structure.
vii) All doors to the cabins, meeting rooms, conference room, pantry, server room were all falling of their alignment within the first week of the defendant company moving into the premises.
viii) The quality of doors was very poor and they had to be replaced by incurring a cost of Rs.1,62,400/.
ix) The rubber bidding on the glass partitions was of very weak and poor quality and had to be replaced.
x) Final paint coat on the interior of the premises on account of having abandoned the site in middle of February 2008 was not provided.
xi) The defendant also observe extremely poor quality screeding and IPS work on the flooring which led to large section on the floor being reworked for secreeding and IPS works.
xii) The uneven flooring was done because of the use of Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
gravel leading instead of cement.
xiii) 80 per cent of the store was damaged with paint marks and other debries on account of poor workman ship of the plaintiff due to which large section of flooring with new carpet tiles were replaced.
xiv) Due to poor management the laminated flooring in the reception area was installed at a very early stage before completion of civil works paint and polish leading to its damage.
xv) The wood work in the pantry was considerably smaller in area to that of agreed.
xvi) The quality of cabinet in conference room was appalling and was ill conceded because of which modifications were to be made to accommodate the projector screen.
xvii) Damage was caused to mineral fibre ceiling and it has dirt all over.
xviii) There were issues with reception desk and magzine racks in the reception and hudle area.
Despite the intimations given by the defendant to plaintiff, all the above mentioned defects were not cured and finally the legal notice dated 11.04.2008 was given. The defendant raised claim against following heads:
i) Towards Work Contract Acts Rs. 1,22,984/
ii) Towards delay in project Rs. 1,50,000/
iii) Towards replacement of doors Rs. 1,62,400/
iv) Towards detention charges paid to CCIL Rs. 1,38,134/
v) Total Rs. 5,73,518/
vi) Interest Rs. 1,14,381/ Total Rs. 6,87,899/ Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
Hence, this counter claim.
7. Plaintiff filed replication to the WS and reply to counter claim denying the contents of WS and reaffirmed the contents of the plaint as correct.
8. From the pleadings of the parties, following issues were framed:
Issue No. 1. Whether the plaintiff is entitled to the decree of recovery as prayed for? OPP.
Issue No. 2. Whether this court has any jurisdiction to the present suit? OPP.
Issue No. 3. Whether the present suit is bad for misjoinder and nonjoinder of the parties? OPD.
Issue No. 4. Whether the plaintiff has completed the work as per the specifications of the defendants within the time frame prescribed by the project agreement? OPD. Issue No. 5. Whether the defendants are entitled to the counter claim as prayed for? OPD.
Issue No. 6. Whether the defendants are entitled to any interest on the counter claim? OPD.
Issue No. 7. Relief.
9. Plaintiff Ms. Jeyaashri C. examined herself as PW1 who filed her affidavit in her examination in chief reiterating the contents of the plaint and relying upon the following documents.
Sl. Documents Exhibit Inference
No. no.
1 Project Agreement PW1/1 Admitted document
&
Ex.P1/
D1
Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
2. Legal notice dated PW1/2 The perusal of the legal
11.04.2008 accompanied notice shows that the
by the list of the defects mentioned in
deficiencies and their above para 6 (ii, iii, iv, v,
claim value. vi, ix, x, xiii, xv) were
never part of the legal
notice and therefore
they amount to
improvement of the
case at the stage of
filing of WS
3. Reply dated 19.05.2008 to P3 In this all the contents
the notice of the notice were
denied
4. Copy of notice dated PW1/4 Vide this notice the 22.01.2009 plaintiff claimed Rs.
9,71,805/
5. Original speed post PW1/5 Irrelevant as service of receipts & 1/6 notice is not disputed
6. Reply to notice dated PW1/7 Vide this reply the 04.02.2009 defendant raised a claim of Rs.18,59,972/ as claimed in the annexure to the legal notice dated 11.04.2008
7. Original post receipt PW1/8 Irrelevant
8. Bill dated 13.11.2007 PW1/9 For Rs.9,03,759/
9. Bill dated 17.12.2007 PW1/10 For Rs.18,30,918/
10. Bill dated 30.03.2008 PW1/11 For Rs.9,71,805/ Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
10. During her cross examination she stated that there was no particular reason for not signing the document, Ex. D1/P1 and she was serious in performing the terms of the agreement. She was required to perform the agreement within the stipulated time frame as per the said document. The civil electrical and air conditioning part was to be performed by the plaintiff is termed as low side work in the agreement. She did not remember the exact date of commencement of the work because as per the schedule, the site was not handed over to them. Upon showing the possession letter dated 13.10.2007, she stated that she was not aware of any communication between Delhi Buildwell Pvt. Ltd. and M/s Analec. She stated that she did not remember whether she had at any point of time notified in writing the defendant regarding the electricity and water supply problem and she has not filed any such document on record. She denied that there was no electricity and water supply problem at the site. The contract value between her and the defendant was Rs. 28 lacs approximately and she had received about Rs. 23.5 lacs from the defendant. The total cost of the extra work done by them for the defendant outside the purview of the contract was Rs. 5,24,000/. She admitted that the work could not be completed within the agreed time which was 52 days and there was a delay of 1 ½ months in completion of the work. She denied that it was professionally incorrect for them and poor management of the work on their part to continue with polish work after the laminated flooring had been done. She stated that no notice was received from the defendant asking them to come and rectify the things. She stated that no proposal was submitted and no approval was taken in writing before undertaking extra work. She volunteer that it was a Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
fast track work and for that reason writing work was not done. She stated that she cannot give the details and break up of the extra work done. She stated that she has already receive sum of Rs.27.5 lacs from the defendant. She denied the entire defence of the defendant. She stated she could not removed snags as they were not allowed to enter after the day the defendant has performed pooja at the side. She stated that they had also written emails to the defendant seeking permission for entry to do rectifications but no such email was proved on record. She admitted that laminated flooring was done in the reception area was done earlier to the installation of work station. She admitted that there was painting and wall polishing going on the internal area after the laminated flooring in the reception area had been done. She volunteer that it was a touch up work she denied any damage to the laminated flooring because of the said touch up work. She stated the laminated flooring was covered with polythene. Thereafter plaintiff evidence was closed in affirmative and in defence evidence.
11. In defence evidence Sh. Inderjeet Ranjan Sarkar was examined as DW1 who filed his affidavit in his examination in chief retreating the contents of the WS cum Counter Claim and relied upon the following documents: Sl. Documents Exhibit Inference No. no.
1 Board Resolution dated DW1/1 Vide which he was 18.07.2009 authorised to signed the WS and to pursue the matter
2. Possession letter dated DW1/2 Vide this the possession 13.10.2007 was taken by defendant company from Delhi Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
Buildwell Pvt. Ltd.
3. Emails dated 22.01.08, DW1/3 Perusal of these email 23.01.08, 25.02.08 & (Colly.) shows that it mentions 28.02.08. the defects in the work as mentioned in the above para 6(v) 4. Copy of statement of DW1/4 account of the defendant company.
5. Bill dated 10.07.08, DW1/5 For Rs.1,38,134/ 11.08.08, 18.11.08 issued to by Mr. Pramod Kumar for DW1/7 rectification works done in the premises.
6. Certificate dated 01.03.09 DW1/8 w.r.t. Payment made for issued by Mr. Pramod replacement of doors Kumar. but no proof of payment was annexed and even author of this document was not examined and this document could not be proved as per law and hence cannot be considered.
7. The undertaking by the DW1/9 It does not mention the plaintiff for compliance and D2 undertaking on behalf of various labour laws such plaintiff for payment of as PF & ESIC WCT tax
8. Original acknowledgment DW1/10 Of payment made by of payment of WCT of Rs. defendant 1,22,984/.
9. Original email dated DW1/11 For demurrage and 29.01.2008 to Container detention charges for Corporation of India of Rs. furniture and carpet 1,38,134/. flooring being held in customs because of delay in project
10. Payment receipt dated DW1/12 of Rs.60,750/and of Rs. Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
31.01.08 issued to & 13 5,384/ defendant.
12. During his cross examination DW2 admitted that property Park Central, 6th Floor was taken on lease by the defendant from M/s Delhi Build Well and not from BPTP. He is not aware of any other building constructed by BPTP prior to construction of Park Centra. He admitted that possession of 6th floor, Park Centra was taken from the plaintiff on 23.02.2008. He denied that there were problems as regard the lift and the electricity supply when the premises was handed over by Delhi Build Well. Email dated 25.11.07 was not sent by them. He admitted that as on 11.11.07, the defendants were aware that plaintiffs were having some electricity problems, but the same were only intermittent as communicated vide email dated 11.11.07. He stated that defendant company was not the first occupant of the premises. He did not remember whether he had sent an email to BPTP as well as Delhi Build Well relating to problems of lift functioning. Complaints were received as regards seepage from the shaft. He denied that the defendant company is liable to pay Rs. 4,47,625/ being the balance contractual amount as the work was not done by the plaintiff company as per the contractual obligations undertaken and because of which, defendant company had to incur extra expenses.
During this cross examination he was confronted with various document that is emails to which he replied that he does not recall as to whether he had received emails dated 28.02.2008 Mark B, 26.10.2007 Mark D, 25.10.2007 Mark F, 19.10.07 Mark J, or he sent emails dated 26.01.08 Mark C, 26.10.07 Mark E, 25.10.2007 Mark G, Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
13.02.08 Mark H, 19.10.07 Mark A. He admitted that he sent email dated 26.10.07 Ex.DW1/P2 to the plaintiff. He admitted that defendant company had received notice U/o 12 Rule 8 CPC dated 09.08.12 i.e. Ex.DW1/P3. He admitted that furniture was to be supplied by M/s Ebaco and not by plaintiff company. He stated that he does not know that it requires about 15 days for installation of furniture. He denied that Sh. Deepak Sharma, Sh. Sanjay Verma, Sh. Rahul Mittal and Sh. Ankit Agarwal were deputed by defendant company to look after the project at site. He volunteer that they were only employees of the defendant and were not deputed at site. He stated that Mr. Rahul Mittal is still the employee of the company. He stated that he does not remember if the defendant company suggested to the plaintiff for making a false flooring in the IT room which was to be a raised flooring with jack and server room. He denied that defendant company suggested for addition of wallpaper, wallgraphics and mirror at side which were admittedly there at the time of handing over the possession by the plaintiff to the defendant. He volunteer that same was part of contract. he stated that he does not remember if frosted film on the glass partition wall were selected by the defendant company. He stated that he does not remember AC unit which were installed in the previous office were removed and were got installed at the side on the asking of the defendant company. He stated that he does not remember if those AC units were installed from there office at the site on the same date of handing over the possession. He stated tha he does not remember if electric wiring, frame work, to fix three units, copper conduce and drain pipe are the additional work undertaken by the plaintiff on the instruction of defendant company. He Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
admitted that writing borads, sinages were provided by the plaintiff company in the meeting room and conference room. He denied that in the entire premises normal sockets were provided by the plaintiff company and on their instance they were replaced with universal sockets. He admitted that universal sockets were provided but he cannot say they were provided entire premises or not. he admitted that the value of contract was Rs.28,72,625/and in addition to that value of design consulting and project management fees was Rs. 3,25,000/. The documents came for consideration during cross examination of defendant are as follows: Sr. Documents Ex. No. Inference No. 1 DW1/P1 2 Email dated 26.10.07 by DW1/P2 Vide thie email two days defendant to plaintiff time was sought by the defendant to talk to BPTP people so that the plaintiff may finish their work in time (which shows that there was some issues on the site due to which plaintiff was not able to work) 3 Notice U/o 12 Rule 8 CPC DW1/P3 Same was not complied written by the plaintiff to the defendant for production of various emails written between the parties from September 2007 to February 2008 4 Mark A 5 Email dated 26.02.08 Mark B Asking for starting the from defendant to pending work from Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
plaintiff tomorrow and in case of
default the contract will
be deemed to be
terminated
6 Email dated 26.01.08 Mark C Vide this email the
with subject site also defendant showed their
inspection on 25.01.08. proved concerned regarding the
(No major defect in as work of the plaintiff. The
workmanship was Ex.RPW issues raised in the main
pointed out in this letter). 2/5 work pertaining to site
cleaning, delay in
completion of modular
ceiling work in the
reception area, non
arrival of PCC material on
site and the PCC work in
the reception area was
found to be totally
uneven (difference in
level), gaps between the
floor and the skerting
which is filled with waste
material, four seater
room in finance and
administration office,
power plug for LCD tv in
conference room, the
shades of the paint
selected by them,
propose date of receiving
the furniture i.e. by
30.01.08 and Pooja is to
taken on 08.02.08
(perusal of this letter
shows that site was being
visited by the defendant
and accept minor issues
no major issues were
raised till 26.01.08)
7 Email dated 26.10.07 Mark D Assuring that after two
Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
written by BPTP to days there would be no
defendant problem at site
8 Email dated 26.10.07 Mark E Mentioning that there
from defendant to BPTP contractor/ plaintiff are
person threatening to stop work
as things are not proper
at site
9 Email dated 25.10.07 Mark F Mentioning about the
written by plaintiff to serious problem of
defendant deficient water supply at
site
10 Email dated 25.10.07 Mark G Mentioning that water
and electric supply is
regular now but it should
be stored for emergency
by the contractor
11 Email dated 13.02.08 Mark H The issues raised are as
exchange between the follows :
employees of defendant 1. No one from Ebaco is with copy to plaintiff doing furniture raising various issues installation.
regarding the site. 2. AC installation staff (Even till 13.02.15 no dump the garbage from major defects in the wall breaking on to workmanship and the carpet and they did quality was pointed out not choose polythene by defendant, only minor 3. The wall separating issues were being their office and the other discussed). office is full of water seepage (but this problem was never given by the addressee in his project update to the author of the letter) and even the workers working the paint job has raised concerned about the seepage and it was told to the an issue to be Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
addressed by BPTP people and the seepage problem is also in the pantry pillar 12 Email dated 19.10.07 Mark K With reference to delay from defendant to PW2 (irregular) Thereafter, DE was closed.
13. Thereafter, Plaintiff examined Sh. David Mervyn Samuel as PW2 in rebuttal evidence who filed his affidavit in his examination in chief retreating the contents of the plaint and relied upon the following documents: Sl. Documents Exhibit Inference No. no.
1. Email dated 11.11.07 DW1/P1 Mentioning about the written by defendant to absence of the site PW2 supervisor and finding the site closed at the time of visit because of no electricity
2. Email dated 25.11.07 RPW2/1 Regarding making received by PW2 written possible of shifting of by defendant their office to the suit property by 14.01.08 as the defendants landlord is not allowing to stay in the previous premises at signature tower
3. Email dated 25.10.07 RPW2/2 Mentioning about the sent by PW2 to DW1 water problem
4. Email dated 26.10.07 RPW2/3 Vide this DW1 gave sent by DW1 to others thanks to BPTP for their assurance dated 26.10.07 i.e. Ex.RPW2/4
5. Email dated 26.10.07 by RPW2/4 Vide this email BPTP Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
Sh. Sumit Agarwal to people sought time for
DW1 defendant for removing
the difficulties so that
the plaintiff may finish
the work in time
6. Email dated 26.01.08 by RPW2/5 Mark C as detailed
DW1 to plaintiff above
7. Email dated 13.02.08 RPW2/6 Mark H as detailed
from DW1 to PW2 above
8. Email dated 28.02.08 RPW2/7 Mark B as detailed
from plaintiff to DW1 above
with copy of PW2
14. During cross examination, PW2 stated that he worked for free for the plaintiff firm. He did not remember the date on which agreement between the plaintiff and the defendant took place. He denied that he was deposing falsely as he was husband of the proprietor of the plaintiff firm and that the project work was not completed in a professional manner. He admitted that there was provision of payment of fee for a site supervision. He stated that on 11.11.2007, no site supervisor was there as site was closed at that time. He denied that the delay in completion of the work was on account of the builders of the building. Thereafter, PE in rebuttal was closed.
I have heard the arguments and perused the record including the written arguments filed by the defendant.
I have heard the arguments and my issues wise findings are as follows:
Issue No. 2. Whether this court has any jurisdiction to the present suit? OPP.
The burden of proving this issue was upon the plaintiff. Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
Plaintiff in his claim mentioned at parties to the suit work for gain at Delhi the defendant has its registered office at South Delhi and as per clause 12 of the agreement between the parties, it is provided that Delhi court shall have jurisdiction, in reply to these allegations it is admitted by the defendant that it has his office at Delhi. The perusal of the agreement between the parties i.e. Ex.D1/P1. It is also an admitted position that this agreement was executed in Delhi and both the parties submitted themselves to the jurisdiction of the courts of Delhi. It can also be assumed that as the plaintiff is having office at Delhi the payments must have been made to the plaintiff at Delhi, therefore, on account on non payment of dues the cause of action for filing the suit arose at Delhi. Hence this issue stands decided in favour of plaintiff and against the defendant.
Issue No. 3. Whether the present suit is bad for misjoinder and nonjoinder of the parties? OPD.
The burden of proving this issue was upon the defendant. A general allegation in this regard was made in WS by the defendant and for the first time in the written arguments it is mentioned that BPTP was a necessary party to the proceedings but how it was not explained by the defendant. Therefore, in the absence of any evidence or material on record, issue stands decided against the defendant.
Issue No. 5. Whether the defendants are entitled to the counter claim as prayed for? OPD.
The burden of proving this issue was upon the defendant. The defendant raised their counter claim of Rs. 6,87,899/details of which are as follows:
i) Towards Work Contract Acts Rs. 1,22,984/ Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
ii) Towards delay in project Rs. 1,50,000/
iii) Towards replacement of doors Rs. 1,62,400/
iv) Towards detention charges paid to CCIL Rs. 1,38,134/
v) Total Rs. 5,73,518/
vi) Interest Rs. 1,14,381/ Total Rs. 6,87,899/ Work Contract Tax: It is argued on behalf of defendant that plaintiff gave a written undertaking which is Ex.D2 to comply various labour law including compliance of PF and ESIC Act and plaintiff also undertook that it would soly responsible for any delays and non deduction or non deposit of any dues related to labour regulation and to indemnityfy defendant from any loss but the plaintiff fail to make the payment of Rs.1,22,984/on account of Work Contract Act, therefore, the defendant deposited the same, hence, liable to be recover the same from the plaintiff. I have perused the record including agreement executed between the parties, but no undertaking could be found on the part of the defendant to pay the Work Contract Act. Needless to say that undertaking to comply the PF and ESIC Act does not amount to undertaking the payment of Work Contract Act, hence, the defendant is not entitled to recover the said amount from the plaintiff.
Claim against delay: As per defendant the time of completion was extended till 08.02.08 mutually between the parties but the site was handed over to the defendant on 23.02.08. Therefore, as per the terms and condition of the agreement i.e. clause 9 of Ex.D1/P1 the plaintiff is liable to pay Rs.10,000/ per day i.e. Rs.1.5 lacs to the defendant as Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
the delay occurred due to the neglect of the plaintiff.
I have perused the record. The correspondence exchange between the parties near to 08.02.08 would be relevant for deciding this issue. The perusal of the email dated 13.02.08 i.e. Mark H and Ex.RPW2/6 exchange between the employee of the defendant copy of which was sent to the plaintiff shows that no one was coming from Ebaco company for doing furniture installation because of the excess work of AC installation some issues were cropped up, there was water seepage issues between the office of the defendant and other office on the same floor, the painter were also raising the concerned about the seepage which was to be addressed by BPTP people. This letter in itself shows that defendant himself was not considering the time limit of the contract as 08.02.08, even otherwise there was no correspondence proved on record by the defendant that they had given the last date of completion of the work as 08.02.08 except in email dated 26.01.08 they had mentioned that date of 08.02.08 as the date of PUJA but the emails written after 08.02.08 does not show any protest on the part of the defendant that delay occurred due to the in action on the part of plaintiff rather the email exchange between the parties shows that there were various other issues for which the plaintiff was not responsible such as non fixing of furniture by Ebaco people and the seepage problem which was not addressed by the BPTP people. Rather the email Mark H mentions that the employees of the defendant who were updating their senior officials about the progress at site had not informed these issues to them in advance and because of these reasons the time was extended even thereafter for completion of the work, hence, it cannot be said that it was plaintiff who was responsible for the delay Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
of the work. Hence this issue is also decided against the defendant. Claim for Rs.1,38,134/ paid to CCIL towards detention charges for withholding the furniture and carpet flooring at customs house as their office was not ready.
As it has already been held that the delay was not because of the negligence on the part of the plaintiff, therefore, the plaintiff cannot be liable to compensate the defendant for the detention charges paid by the defendant to customs on the face of it. Even otherwise there was no agreement between the parties that in case of delay in such an eventuality, the plaintiff shall be liable to compensate the same to the defendant. The plaintiff was not apprised of any such eventuality any time of entering into an agreement, hence, the plaintiff cannot be made liable to pay the same in view of Section 73 of Indian Contract Act as the loss in question cannot be said to the arose naturally in the usual course of things from such breach, which the plaintiff knew when they made the contract. Hence, this issue is also decided against the defendant. Claim of Rs.1,62,400/ Allegedly incurred by the defendant for rectification of the defects of the doors It is alleged by the defendant that it had to incurred the above mentioned amount for replacement of all the doors within its premises and the placement of the biding of the glass partitions that holds the glass in its place as it was of poor quality.
It is pertinent to mention here that if we perused the emails exchange between the parties as mentioned above, there was never a complaint with respect to quality of doors used in any of the emails, even in the legal notice issued by the defendant, there is no mentioned of poor quality rubber biding of glass and the factum of Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
defect the doors was for the first time mentioned in the legal notice of the plaintiff. It is also pertinent to mention here that accept the certificate Ex.DW1/8 of one Sh. Pramod Kumar there is nothing on record in favour of defendant to show that the quality of the doors was not proper. It is pertinent to mention here the said certificate of Sh. Pramod Kumar was also not proved as per law through Sh. Pramod Kumar and hence cannot be relied upon. There is no documentary evidence in the form of bank statement on record that a sum of Rs.1,62,400/ was paid to Sh. Pramod Kumar towards the replacement of doors. In the absence of any cogent evidence, this claim of defendant also stands rejected.
Hence, the above mentioned issue stands decided against the defendant and counter claim of the defendant stands dismissed.
Issue No. 6. Whether the defendants are entitled to any interest on the counter claim? OPD.
In view of decision of issue no.1 this issue also decided against the defendant.
Issue No. 1. Whether the plaintiff is entitled to the decree of recovery as prayed for? OPP.
Issue No. 4. Whether the plaintiff has completed the work as per the specifications of the defendants within the time frame prescribed by the project agreement? OPD.
Issue no.1 and 4 are being decided together as they are interconnected to each other and decision of both the issues depends upon the appreciation of same set of facts.
The defendant in their WS/counter claim pointed out various deviations from the agreed plan in the work of plaintiff which Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
are detailed in para 6 above and same would be discussed one by one herein below:
i) Small pantry counter was provided to that of agreed size.
But what was the agreed size and what was provided has not been mentioned, how much was the deviations the details were not provided and the loss allegedly occurred on this account to the defendant has not been quantified in terms of money. So this allegation remain to be only an allegation as nothing was proved by the defendant in this regard.
ii) Kitchen cabinet and table tops were of very poor quality.
It is pertinent to mention here that the allegation in this regard was not explained and a general in this regard has been made which was not proved in specific by the defendant.
iii) Deviations on the electrical wiring of the desks on the main floor (for which defendant had to incurred extra cost by building concealed raceways for running electric wire and network cables).
iv) Very shoddy work was done with wires sprouting out from the floor every where below each desks without any regard alignment and exact positioning.
v) Faulty network and electric sockets were provided in the finance and administration rooms leading behind one desk out of four plan desk there for which defendant had to incurred extra cost for connecting the same.
Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
All the above mentioned defects were alleged in general by the defendant. No photographs of shoddy work or faulty network was placed on record which could have been easily proved by the plaintiff, hence, in the absence of any evidence it cannot be said that the work of the plaintiff in this regard was shoddy.
vi) Poor quality gypsum partitions were provided which developed cracks all over and seems to be an unstable structure.
Only a general allegation in this regard was made without leading any evidence to quantify the loss if any occurred to the defendant. In the absence of any evidence, this allegation also remained unproved.
vii) All doors to the cabins, meeting rooms, conference room, pantry, server room were all following of their alignment within the first week of the defendant company moving into the premises.
viii) The quality of doors was very poor and they had to be replaced by incurring a cost of Rs.1,62,400/.
ix) The bidding on the glass partitions was of very weak and poor quality and had to be replaced.
All the above mentioned issued have already been discussed while deciding the counter claim of the defendant. It has already been held that defendant has failed to proved that those installed were of poor quality and they were replaced ever or defendant ever incurred any expenses towards the said replacement.
x) Final paint coat on the interior of the premises on account of having abandoned the site in middle of February 2008 was not Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
provided.
It is surprising that at one place that defendant is alleging that site was handing over to the defendant on 23.02.2008 and here the defendant is alleging that the site was abandoned in the middle of the February. Both these allegations are contradictory in nature. As per email Mark B admittedly there were some pending work as on 26.02.2008 and plaintiff was asked to start their pending work from 27.02.2008. If we perused the para 5 of the legal notice of the defendant dated 11.04.2008, in the said para it is the quality of the paint that has been questioned but in the paint it is not the quality which has been challanged rather it was alleged by the defendant that last coat of paint was not provided. It was alleged in the notice that defendant had to do the paint work again, but not proof of payment was paint work has been placed on record rather there is no correspondence in the form of email or letter from the side of defendant in between the period of 23.02.2008 to 11.04.2008 alleging that paint work was not done by the plaintiff. In these circumstances, it cannot be assumed that paint was in bad quality and it was done again by the defendant at their end.
xi) The defendant also observe extremely poor quality screeding and IPS were on the flooring which led to large section on the floor being reworked for secreeding and IPS works.
The allegation of defendant in this regard remained an allegation only as no evidence in this regard in any form has been lead and no evidence for reworking for screeding and IPS work was led on behalf of the defendant. If it was reworked that defendant must have incurred some cost on it but no proof of payment for the said work has been placed on record and it can be safely said that Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
defendant has failed to prove this allegation also.
xii) The uneven flooring was done because of the use of gravel leading instead of cement.
This allegation of the defendant was proved to be only an allegation. The loss if any occurred to the defendant because of the poor workmanship on the part of the plaintiff has not been quantified and in the absence of any evidence it cannot be said that defendant has been able to discharged its burden in proving its allegation.
xiii) 80 per cent of the store was damaged with paint marks and other debries on account of poor workman ship of the plaintiff due to which large section of flooring with new carpet tiles were replaced.
This allegation of the defendant was proved to be only an allegation. The loss if any occurred to the defendant because of the poor workmanship on the part of the plaintiff has not been quantified and no evidence was led to show that the large section of flooring with new carpet titles were replaced in the form of any photographs or proof of any expenditure and in the absence of any evidence it cannot be said that defendant has been able to discharged its burden in proving its allegation.
xiv) Due to poor management the laminated flooring in the reception area was installed at a very early stage before completion of civil works paint and polish leading to damages.
The damages if any in this regard has not been quantified by the defendant by leading any evidence and in the absence of any evidence no deduction can be made from the claim of the plaintiff.
xv) The wood work in the pantry was considerably smaller in area Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
to that of agreed.
No details of the deviations was provided by the defendant and the allegation in this regard could be proved by defendant.
xvi) The quality of cabinet in conference room was appalling and was ill conceded because of which modifications were to be made to accommodate the projector screen.
Nothing was proved to show as to how the quality of cabinet in conference room was not proper and what modifications were to be made to accommodate the projector screen, who did it and at what cost. It is pertinent to mention here that defendant has opted to level allegations only but did not bothered to proved the same on record.
xvii) Damage was caused to mineral fibre ceiling and it has dirt all over.
The damages if any caused has not been explained and quantified in terms of money.
xviii) There were issues with reception desk and magzine racks in the reception and huddle area.
The allegation of the defendant in this regard also could not be proved in specific as to what were the real issues and in the absence of the same, it cannot be said that any loss occurred to the defendant.
Claim of the plaintiff with respect to the extra work carried out by the plaintiff on the instruction of the defendant.
The plaintiff in his plaint in para 6 gave details of the extra work which is as follows: The plaintiff had to carry out the following additional Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
works:
a) Raised flooring/with jack in server room. Make:
Unifloor.
b) Wall paper in reception area make F & F.
c) Wall graphics in cafeteria make: 3M
d) Frosted film: 3M
e) Mirror cladding in cafeteria
f) Toughened glass door on patch fitting
g) Glass writing boards with SS Studs & White Vinyl (meeting rooms, cabins, conference)
h) AC works high wall split/copper pipe
i) Electrical wiringHVAC
j) Frame work : high wall split
k) Ac works: Drain pipe
l) Signage : MDF
m) Removing and refixing of AC split units While replying to this para, no specific denial was made by the defendant, remaining thereby that defendant admits that the above mentioned work were carried out by the plaintiff. Though during cross examination an objection was taken by the defendant stating that as per project agreement i.e. clause 6 the written approval should have been taken before carrying out the extra work.
Clause 6 is reproduced herein below: All changes and deviations in the work ordered by Customer must be in writing between the Contractor and Customer, with the Contract Amount being adjusted accordingly. Any claims for increases in the cost of the work must be presented by Consultant to Customer in writing, and written approval of Customer shall be obtained by Consultant before proceeding with Suit no. 219/14 Jeyashree C. Vs. M/s Analec Infotech Pvt. Ltd.
the ordered change or revision. However, given that this is being assigned on a fixed price basis, only additional features to the scope will attract additional costs.
The perusal of the above clause clearly shows that this clause is meant for only the changes in the work already ordered and not extra work, if given to the plaintiff by the defendant to be carried out by the side. Therefore, the order of giving extra work out of the scope of this agreement can always be taken as separate contract and hence, the defendant is liable to pay for the same i.e. Rs.5,24,180/
15. Relief.
In view of decisions of issue no.1 and 2 the plaintiff shall be entitled to recovery of Rs.10,99,355/ alongwith pendentelite and future interest @10% per annum and cost of the suit is also awarded to the plaintiff. Counter claim of the defendant stands dismissed with cost. Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in Open Court (NAVEEN ARORA)
on 23rd May 2015 ADJ06: SOUTH: SAKET
NEW DELHI