Bangalore District Court
Shree Shyam Designs (P) Ltd vs Aravind Lifestyle Brands Ltd on 21 February, 2015
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)
Dated this 21st day of February, 2015.
Present
SMT.K.B.GEETHA, M.A., LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.7192/2011
PLAINTIFF : Shree Shyam Designs (P) Ltd.,
Pattammal Plaza, 1st Floor,
3rd Cross, Kammanahalli,
Bangalore-560 084 and
Represented by its Managing
Director, Sri.Mukesh Kumar.
(By Sri Rajaram Bhat.O.,Advocate)
-VS-
DEFENDANT : Aravind Lifestyle Brands Ltd.,
DU Park Trinity, 8th Floor,
#17, M.G.Road,
Bangalore-560 001,
Represented by its
Managing Director.
( By M/s.Indus Law, Advocates)
Date of Institution of the suit : 1/10/2011
Nature of the Suit : Recovery of money.
Date of commencement of recording
of evidence : 6/3/2013
2 O.S.No.7192/2011
Date on which the Judgment was
pronounced : 21/02/2015
Year/s Month/s Day/s
Total Duration : 03 04 20
JUDGMENT
The plaintiff has filed this suit for recovery of Rs.20,54,664/- with court costs and future interest at the rate of 12% p.a. from the date of suit till realization and for such other reliefs.
2. The case of plaintiff in nutshell is that the plaintiff is a private limited company engaged in the field of interior decoration and allied works of buildings. The defendant is a limited company represented by its managing director engaged in the business of manufacture and marketing of apparels and accessories under different brands and styles. The architects of defendant U & S Fifth Wall Designs, LLP, No.3310, 2nd Floor, 12th Main, 8th Cross, HAL 2nd Stage, Indiranagar, Bangalore-38, called for bills of quantities i.e., quantities of works entitled to be carried in 3 O.S.No.7192/2011 the office of the defendant situated at 8th floor 'A' wing to the plaintiff by e-mail. Thereafter, plaintiff submitted the bills of quantities to said architect and thus defendant invited the plaintiff for negotiations and finalized the order vide its purchase order bearing No.2100008785 dtd:
2/11/2010 to carry out carpentry work of the office of defendant for a sum of Rs.30,37,081/-. Subsequent to placing the above said purchase order, the additional bills of quantity was issued by architects of defendant to the plaintiff in view of increase in the quantities of work in the office of the defendant and all additions as required by defendant to the tune of Rs.31,37,307/-. Accordingly, plaintiff submitted additional quotation dtd: 30/12/2010 for additional works. Further, while executing the work, some additions or deletions to the work as per requirement of the site conditions of the customer. Hence, naturally there will be consequential increase or decrease in the quantity of work actually carried out and the same will be reflected in the final bills raised by plaintiff upon the defendant. Accordingly, plaintiff 4 O.S.No.7192/2011 executed the said work as per purchase order and as per additional bills of quantities issued by the plaintiff to the satisfaction of the defendant and raised final bill upon the defendant vide bill No.FB92/2010-2011 dtd: 25/1/2011 for Rs.71,09,482/- and it was certified by the defendant's architect to the tune of Rs.70,19,334/- after inspection. The architect of defendant has taken all the additions and deletions in the overall work while certifying the final bill for payment. Out of the said amount, the defendant has paid a sum of Rs.49,97,081/- to the plaintiff leaving balance amount of Rs.20,22,253/- which includes retention amount of Rs.3,50,966/- retained by defendant being 5% of the final bills for a period of 6 months from the date of the final bill and payable to the plaintiff after 6 months and the balance amount was Rs.16,71,287/-. Subsequently, on 25/1/2014 defendant withhold the payment of the above said amount. The retention period expired on 24/7/2011. The defendant is liable to pay interest at 9% p.a. upon the due amount from 25/7/2011 till payment of entire amount, as the transaction was 5 O.S.No.7192/2011 commercial in nature. Even after repeated requests and demands, defendant failed to pay the above said balance amount. Hence, plaintiff issued legal notice dtd:
20/7/2011 through its advocate calling upon the defendant to make payments along with interest at 12% p.a. After service of said notice, defendant has given an untenable reply. The plaintiff has given rejoinder to said reply notice through its advocate on 22/9/2011. Even after service of said rejoinder, defendant has not paid the balance amount. Hence, the suit for appropriate reliefs.
3. After service of suit summons, defendant appeared through its counsel and filed its written statement wherein it admitted the 1st transaction between plaintiff and defendant regarding doing carpentry work by plaintiff for sum of Rs.30,37,081/-. It further contended that the time was essence of the contract as the employees of the defendant were to give up their work area until the plaintiff completed the renovation work at the 8th floor. In fact, the employees of the defendant company working 6 O.S.No.7192/2011 on the 8th floor were temporarily shifted to a portion of the 10th floor and defendant took said portion on rental basis to facilitate the plaintiff to carry out the work smoothly and effectively. Further it was agreed that plaintiff was to limit its expenditure of works within the amount mentioned in the purchase order. At no point of time, without the permission of the defendant company, the plaintiff was not allowed to spend over the budget amount mentioned in the purchase order. Since from the beginning, plaintiff's work was unsatisfactory and not as per the purchaser order and not as per agreed terms. The materials used by the plaintiff were of sub-standard. The quality of work executed by plaintiff was incomplete at various stages. Moreover, the supervisory staff and labourers of plaintiff frequently remained absent due to which the work undertaken by the plaintiff used to get stalled regularly as defendant company had time and again along with other issues raised the issue of poor quality of work done by the plaintiff. It was evident from the e-mails exchanged between plaintiff and defendant 7 O.S.No.7192/2011 and 5th Wall Designs who were the architect of defendant. The issues raised by Defendant Company remained unattended by the plaintiff. The defendant company raised several issues regarding incomplete works in the toilet, boardroom, design studio, lobby work, tile laying by way of its e-mail dtd: 24/1/2011. The plaintiff had given replies by giving baseless excuses for not completing the work and further took more time to complete those works positively. But plaintiff did not complete the work and defendant has to engage 3rd party to complete the works that were left incomplete by the plaintiff. The defendant has raised several issues regarding fixing of Kota stone at the defendant's office and it was informed by the architect of the defendant company to plaintiff vide its e-mail dtd:
31/1/2011. It was brought to the notice of the plaintiff that it had laid Kota stone which was not approved by the defendant or by its architect and that it had used unapproved and substandard materials for laying the same. The defendant's architect has also informed the plaintiff that the plaintiff had not laid the stones properly 8 O.S.No.7192/2011 and that it was not as per the agreed quality and neatness. The defendant company engaged 3rd parties to re-lay a totally different stone altogether by paying over and above its budget allotted. The defendant company further raised issues regarding carpentry work executed by plaintiff at the office board room and its employee's cabins. Further by e-mail dtd: 7/2/2011 defendant company informed the plaintiff that the carpentry work was not done as per the agreed terms. There was gap on all four sides of the main door to the board room. It was also pointed out to the plaintiff that the Plaster of Paris inside the cabins of its employees was broken and there were other concerns that had to be addressed by the plaintiff. The lamination used in the employee's cabins was also of sub-standard and as such it was peeling off. The defendant by way of its e-mail dated 18/3/2011 intimated the plaintiff that the toilets in the 8th floor of the defendant's office were stinking due to the non-existence of return air pipe for sanitary fittings. The fittings of exhaust fans and existence of return air pipe are the basic 9 O.S.No.7192/2011 requirements while constructing/reconstructing a toilet. Further the urinals were not fixed properly and as such the urinals were leaking. Apart from the above, the work in defendant's office was suddenly stopped due to non- availability of manpower and supervisory staff on several times. The quality of fixing the wooden flooring was poor in many places. The level of commitment and the assurance of quality of work were totally misrepresented by the plaintiff at the time of placing purchaser order. The plaintiff had not provided the assured quality of work and had not completed certain works which it had undertaken to complete. With all these, defendant received final bill from the plaintiff. The plaintiff with malafide intention raised the said bill for the works allegedly executed by it, when admittedly the plaintiff was still completing the work as on the date of raising the final bills. Further it was not in conformity with the original purchase order. The claims of plaintiff were incorrect and not as per the work executed. The defendant without prejudice to the claims made regarding the poor quality of 10 O.S.No.7192/2011 work by plaintiff, made payment of Rs.49,97,081/- to the plaintiff towards the actual work done by the plaintiff as full and final settlement of dues. This amount was arrived after the plaintiff and defendant jointly assessed the actual completion of work in the manner agreed upon. Hence, the defendant is not liable to pay the suit claim amount. It has given proper reply to the notice given by plaintiff. The plaintiff accepted the payment of Rs.49,97,081/- as full and final settlement of its dues. The defendant's architect is not authorized to certify any bill raised by plaintiff. Since the time was essence of the contact, plaintiff had to compensate defendant for the loss suffered by it due to its inability to hand over the office within the agreed time and hence, prayed for dismissal of the suit with costs.
4. From the above facts, the following issues were framed:-
11 O.S.No.7192/2011
ISSUES
1. Whether the plaintiff proves that the defendant is due and liable to pay the suit claim of Rs.20,54,664/- as prayed for?
2. Whether the plaintiff proves that the defendant is also liable to pay the interest as claimed?
3. Whether the plaintiff is entitled for a judgment and decree as sought for?
4. To what order or decree?
ADDITIONAL ISSUE
1. Whether the plaintiff proves that they have executed the work as per the Purchase Order and also as per the additional "Bills of quantities' issued by the architect of the defendant?
5. On behalf of plaintiff, the Managing Director of Plaintiff Company is examined as PW-1, examined one architect as PW-2, got marked Ex.P.1 to Ex.P.59 and closed its side. On behalf of Defendant Company, power of attorney holder of defendant company is examined as DW-1 and 12 O.S.No.7192/2011 examined one witness i.e., managing partner of Krishna Interior as DW-2, got marked Ex.D.1 to Ex.D.75 and closed their side.
6. Heard arguments of both sides.
7. Findings of this court on the above issues are :-
Issue No.1:- In Affirmative;
Issue No.2:- Partly in Affirmative;
Issue No.3:- Partly in Affirmative;
Additional Issue No.1:-In the Affirmative;
Issue No.4:- As per the final order for the following:-
REASONS ISSUE No.1 & ADDITIONAL ISSUE NO.1
8. These issues are considered together as they require common discussion. The admitted facts are that plaintiff has taken the carpentry work of 8th floor, 'A' wing of the office of defendant and the purchase order was for Rs.30,37,081/- and it was issued vide order No.2100008785 dtd:2/11/2010. Though it is an admitted 13 O.S.No.7192/2011 fact, to substantiate it, the plaintiff has also produced the purchase order as per Ex.P.6. It is also an admitted fact that Fifth Wall Designs is the architect of defendant and it has furnished the appropriate designs to plaintiff on behalf of defendant and accordingly, plaintiff has to carry out its work in the 8th floor, "A" wing of defendant's office. The plaintiff examined one of the architects of said Fifth Wall Designs as PW-2.
9. It is the further contention of plaintiff that after commencement of work, again additional bills of quantities was issued by the architect of defendant to plaintiff in view of increase of quantities of work in the office of defendant and additional purchase order was for a sum of Rs.31,37,307/-. Accordingly, plaintiff has submitted additional quotation dtd: 30/12/2010 for additional work. Actually, at the time of execution of the work, some addition or deletion to the work happens as per the requirement of site conditions of defendant. Hence, there will be increase or decrease in the quantity of work actually carried out.
14 O.S.No.7192/2011
10. The plaintiff contended that he has raised his final bills upon defendant vide bill No.FB92/2010-2011 for Rs.71,09,482/- and it was certified by the architect of the defendant to the tune of Rs.70,19,334/- after inspection of the work carried out by plaintiff.
11. The defendant denied these contentions of plaintiff and specifically contended that its architect had no authority to certify the final bill raised by the plaintiff. It is further contended that there were lapses in the work carried out by plaintiff and it was not up to the satisfaction of defendant and plaintiff has left some work incomplete. Hence, it got it completed and some works were redo by one Krishna Interiors and thus, after joint inspection of both sides, it settled the amount at Rs.49,97,081/- and paid the said amount as full and final settlement to the plaintiff.
12. The plaintiff admitted the payment of Rs.49,97,081/-. But contended that there is balance of Rs.20,22,253/- 15 O.S.No.7192/2011 which includes retention of 5% of the final bill for a period of 6 months.
13. The defendant contended that it has raised several issues regarding incomplete work in toilet, boardroom, design studio, lobby work, tile lying by way of its e-mail dtd: 24/1/2011.
14. As per the contentions of both sides, the Kota stones ought to be laid to the floor of 8th floor 'A' Wing. But the availability of said Kota Stones were not as per specifications of defendant. Hence, though plaintiff laid major portion of Kota stones, it has taken back said lying stones and further laid stones in accordance with the specifications of defendant.
15. In this regard, perusal of e-mail conversations between plaintiff and defendant and Fifth Wall Design is very much required. The defendant has produced e-mails conversations as per Ex.D.1 to Ex.D.13. Some of them were confronted to PW-1. However, PW-1 had not admitted the receipt of Ex.D.1, Ex.D.2, Ex.D.6 to Ex.D.9. 16 O.S.No.7192/2011 But he admits the receipt of Ex.D.1(a). The architect of Defendant Company is examined as PW-2 who had admitted about the receipt of Ex.D.1, Ex.D.2 and Ex.D.10. The defendant has produced these e-mails with certificate under Section 65(B) of the Evidence Act. In the cross- examination of DW-1, these e-mails were not seriously denied by plaintiff. Hence, these e-mail conversations could be looked into to know what exactly happened between plaintiff, defendant and Fifth Wall Designs.
16. The 1st e-mail amongst them is Ex.D.8 dtd:
29/12/2014 issued by one Nagaraj V. of Defendant Company to DW-1 and PW-2 and its copy was sent to plaintiff. On the same day at 1.52 p.m. DW-1 had sent one e-mail to PW-2 and Nagaraj wherein he has stated that wooden flooring in the design studio has to be leveled, cleaned and polished and this has been informed to Mukesh(PW-1) , but he is saying that he had not been informed. For which this Nagaraj has given reply stating that said Srinivasan (DW-1) and plaintiff sort out and 17 O.S.No.7192/2011 anything which is not good quality finish will not only reflect poorly on their firm, but also will be debited heavily to the concerned vendor's bill. Thus, mere reading of these e-mails establish that at the time of executing the work by plaintiff, there was no satisfaction from the side of defendant and there were conversations between DW-1 and his higher office and also plaintiff and 5th Wall Designs regarding wooden flooring.
17. Ex.D.11 is the e-mail sent by defendant to plaintiff on 13/1/2011 at 10.27 a.m. stating that they have organized Pooja on 14th January 2011 at 11 a.m. and prior to that, all the works should be completed and building should be ready to occupy after pooja. For this e-mail, the employee of plaintiff-Praveen has given reply as per Ex.D.7 on the same day at 11.17 stating that design studio, design board room, Alok cabin, library, work station inside and discussion cabin inside work will be completed on that day; but some more works will be completed on 15th and 22nd of the same month. 18 O.S.No.7192/2011
18. Next e-mail is Ex.D.2 dtd: 24/1/2011 at 12.07 p.m. from Praveen of plaintiff company to DW-1 stating that they have not fixed urinals and they will be fixed on that day and they would correct the leakage of urinals by fixing balance wall and they have taken time to fix the board, Kota stones, design studios, lobby before 30th January 2011 and they have already completed wall paneling on 21/1/2011 and they would lay grey tiles if permission is given by late night on that day. After receipt of this e-mail, on the same day at 1.40 p.m. as per Ex.D.1(a) Nagaraj of defendant company had sent e-mail to plaintiff, DW-1 and Fifth Wall Designs regarding incomplete work stating that they were shocked to see that some dates of delivery being shown in February and also mentioned that in which cases they will take their own time to settle all payments and they should not follow up for payments. On the same day at 3.14 p.m., PW-2 had sent e-mail to DW-1 and Nagaraj as per Ex.D.1 wherein it is stated that due to some unexpected Bandh and unavailability of raw-materials, work could not be 19 O.S.No.7192/2011 completed at the design studio and it will be completed and also mentioned that they have to select wall papers for Suresh Cabin and for CEO's cabin and they will sent samples for board room and they would sent some picture frames.
19. On 7/2/2011 e-mail as per Ex.D.4 was sent from DW-1 to plaintiff company and copy to PW-2 stating that the door fixed to cabin of J.Suresh and door frame is not to their satisfaction and there is gap in all the four sides of the door; plaster of Paris inside the cabin is broken; the side finish outside the cabin is not properly done and asked them to finish the work on that day or else to take the doors back.
20. On perusal of Ex.D.4, it is clear that the defendant was not satisfied with the work done by plaintiff regarding fixing of door to one cabin and there are several lapses in completing the work by plaintiff. On perusal of Ex.D.2, Ex.D.1 and Ex.D.1(a), they also reveal that plaintiff has not completed the work within the frame work of time. 20 O.S.No.7192/2011 On 31/1/2011 at 6.29 p.m., the Fifth Wall Designs architects have given e-mail to Praveen, one of the employees of plaintiff company as per Ex.D.3 and its copy was sent to defendant company wherein specifications of Kota stone was mentioned and stated that the said Kota stone laid to the floor was not in accordance with their specifications. On the same day prior to that at 5.44 p.m. said Praveen had given details of availability of Kota stones and their measurements and stated that they have almost completed the work. Only 2-3 pieces were left to be fixed and also mentioned that the available sizes are not as per the specifications given by defendant.
21. This Ex.D.3 reveals that lying of Kota stones by plaintiff was not in accordance with the specifications of defendant. But it also reveals that the specifications of defendant's Company were not available.
22. The next e-mail we find is Ex.D.10 dtd: 18/3/2011 at 11.43 a.m. Prior to that time, on the same day at 11.22 a.m. one of the partners of Fifth Wall Designs-Shinto had 21 O.S.No.7192/2011 sent e-mail to DW-1. It reveals that the toilet was stinking and not possible for any one to enter inside; due to non- exist of return air pipe for the sanitary and absence of air- exhaust and further stated that the air exhaust has not been planned while doing 8th floor toilet tiles which is one of the basic needs while doing toilet work and further stated that because of half work execution, defendant suffered every day and they ought to have got completed the work by the end of week , but they cannot wait for 2 weeks. This e-mail also shows that defendant was not satisfied with the work of plaintiff regarding fixing of urinals and there were some lapses on the part of plaintiff.
23. Ex.D.13 is dtd: 4/3/2011 at 17.04 hours sent by plaintiff to one Deepu and copy to DW-1 stating that several works are ought to have been done by said Deepu.
24. Ex.D.12 is dtd: 6/4/2011 at 12.41 p.m. sent by Fifth Wall Designs to DW-1 and plaintiff and also its copy to Nagaraj regarding their meeting time for payment. 22 O.S.No.7192/2011
25. On 19/5/2011 at 4.05 p.m. as per Ex.D.5 and Ex.D.9 at 16.05 p.m., plaintiff sent e-mail to DW-1 regarding not completing the work due to annual holiday for supervisory staff and labourers and it would be completed before 28th and 29th May 2011.
26. Ex.D.6 is dtd: 23/6/2011 at 6.03 p.m. from DW-1 to plaintiff company and copy to Fifth Wall Designs stating that quality of work done by plaintiff was very poor and there was interior work still to be done and defendant had called other vendor to complete the unfinished work and to redo most of the work and they have also instructed Fifth Wall Designs regarding quality and to stop the work and repeatedly the work done by plaintiff was billed, but it is not justified.
27. The plaintiff has denied the receipt of this e-mail as per Ex.D.6 in the cross-examination and it is marked only for convenience. It was not confronted to PW-2 at the time of cross-examination. DW-1 has not identified it in 23 O.S.No.7192/2011 his examination-in-chief before court. Hence, this document is not proved in accordance with law.
28. The defendant has also produced several photographs as per Ex.D.15 to Ex.D.59 pertaining to leakages in the urinals, broken ceilings, damages in the work done by plaintiff etc. However, these documents were not confronted to DW-1. In the cross-examination it was suggested to DW-1 that these photographs were created and fabricated only to suit the convenience of defendant, which was denied by him. However, when these photographs were produced by defendant, it is his duty to prove these photographs in accordance with law that these photographs depict the 8th floor "A" wing of their office in which carpentry work was done by plaintiff. However, as already discussed above, defendant has not made efforts to confront these photographs to plaintiff to prove them. Mere production of photographs with their CD will not prove that these photographs were taken at the spot.
24 O.S.No.7192/2011
29. DW-1 is the authorized signatory of defendant and he had made conversations with plaintiff regarding execution of carpentry work in their 8th floor "A" Wing. In the cross-examination, DW-1 has deposed that Fifth Wall Designs, the architect of their company has furnished designs for interiors of their office situated at 8th floor "A" Wing to plaintiff and as per their direction and designs, plaintiff has to do the carpentry work. He further deposed that Plaintiff Company has no liberty to deviate from the designs furnished by their architect. He was making correspondence with plaintiff as well as Fifth Wall Designs for the purpose of construction of interiors of their office. He further admitted that on 2/11/2010 purchase order as per Ex.P.3 was issued from his company. He admitted that Ex.P.15 e-mail is sent by their company and also admitted that as per Ex.P.15, they have agreed to go with the additional work and purchase order will be issued subsequently. He further admitted that additional work has been made by plaintiff, but he volunteered that it was not as per their requirements. He further admitted that 25 O.S.No.7192/2011 as per Ex.P.15, additional purchase order is not issued from their company.
30. With these backgrounds, Ex.P.15 e-mail is to be looked in to. According to it, on 3/1/2011 at 10.27 a.m. DW-1 has given e-mail to Shinto, one of the partners of Fifth Wall Designs and its copy to plaintiff wherein he has given confirmation to go for additional work and also stated that the revised purchase order will be issued shortly and also stated that the site should be cleared by the carpenter, electrical modular, network by 7/1/2011. Prior to that on 30/12/2010 at 1.41 p.m. DW-1 had received e-mail from Shinto with estimate for additional works at 8th floor.
31. The above discussion reveals that on 3/1/2011 confirmation was given by defendant Company to plaintiff to do additional work and defendant agreed to issue revised purchase order. But it failed to issue revised purchase order. Hence, plaintiff claimed the original purchase order amounting to Rs.30,37,081/- and the 26 O.S.No.7192/2011 additional work done by him totally to the tune of Rs.71,09,482/-. But it was reduced to Rs.70,19,334/- by the architect of the defendant.
32. The defendant Company contended that since from beginning the time was essence of contract and plaintiff has not completed the work within the stipulated time. Ex.P.4 was the bill of quotation issued by plaintiff to defendant on 30/12/2010 and at that time, it was mentioned that 30 days time fixed for completion of the work order along with advance and the acceptance. Coupled readings of Ex.P.14 and Ex.P.15 clearly establishes that on 301/2/2010, the additional bills of quotation was given by plaintiff to defendant for a sum of Rs.29,00,000/- and odd and defendant company agreed for it by issuing e-mail on 3/1/2011 to go on with the additional work.
33. The 1st bills of quotation given by plaintiff to defendant is as per Ex.P.2 dtd: 18/10/2010. According to it, the 1st bills of quotation was for Rs.30,37,081/- which 27 O.S.No.7192/2011 was approved by defendant as per Ex.P.3 purchase order dtd: 2/11/2010. Ex.P.5 is the total bill given by plaintiff to defendant and as already stated above, it was reduced by architect of defendant as per Ex.P.7. Ex.P.6 is the certificate issued by the architect of defendant i.e., PW-2 wherein it is stated that the total amount is for Rs.70,19,334.25/- out of which some amount was already paid and 5% of the total amount was retained for a period of 6 months and the balance amount is Rs.36,92,030/-.
34. The defendant makes serous allegation that contract was not completed by plaintiff within the time frame work. In this regard, as already discussed above, there were several e-mail conversations between plaintiff and defendant wherein defendant was harping upon plaintiff for non-completion of work. However, plaintiff has produced some e-mails which reveals that designs were approved by defendant belatedly which is also one of the cause for delay in completion of the work. As already 28 O.S.No.7192/2011 discussed above, without the designs of defendant, plaintiff was not permitted to do the work.
35. In this regard, plaintiff has produced e-mail as per Ex.P.16 dtd: 14/1/2011 at 3.52 p.m. given by the architect of defendant to plaintiff with approved drawing for CEO Cabin. Ex.P.17 dtd: 14/1/2011 at 6.17 p.m. with approved plan of elevators. Ex.P.18 dtd: 18/1/2011 at 6.09 p.m. from the architect of defendant to plaintiff with approved drawing of revised flooring layout. Ex.P.19 dtd: 2/2/2011 at 3.35 p.m. from the architect of defendant to plaintiff with approved drawing of Board room.
36. On careful perusal of these Ex.P.16 to Ex.P.19 with their approved drawings establish that defendant company approved the drawing for CEO cabin, floor and other works belatedly i.e., on 14th January, 18th January and 2nd February 2011. Hence, though the defendant confirmed for additional work by e-mail letter dtd: 3/1/2011 as per Ex.P.15 and it was also mentioned that within one month works should be completed, the defendant company itself 29 O.S.No.7192/2011 sent final approved drawing on 2/2/2011 i.e., exactly one month after the confirmation. Hence, definitely it caused delay in executing the work. Hence, the contention of defendant that time was the essence of contract and plaintiff has not completed the work within the stipulated period and hence, it is not liable to pay the additional amount cannot be considered as tenable one.
37. The next objection strongly raised by defendant is that work done by plaintiff was not satisfactory and it was incomplete and thus, it got it completed through Krishna Interiors and got other works redo by Krishna Interiors. In this regard, Defendant Company relied upon the oral evidence of DW-2 coupled with Ex.D.61 to Ex.D.76. It also relied upon Ex.D.15 to Ex.D.59 photographs with its CD as per Ex.D.60. However, as already discussed above, these photographs are not helpful to defendant to prove that the work done by plaintiff was unsatisfactory. However, there were some e-mail conversations between plaintiff and defendant to establish that there were some 30 O.S.No.7192/2011 lapses in the work of plaintiff. For example, there was space in between the doors and leakage of urinals etc. As already discussed above, the e-mails produced by defendant establishes that even during May 2011, there was conversation between plaintiff and defendant regarding rectification of work done by plaintiff.
38. It is pertinent to note here that Defendant Company is contending that these repairs were not carried out by plaintiff but it got it repaired through D.W.2. However, this contention of defendant has to be proved by defendant alone.
39. To prove these facts, defendant's counsel mainly relies upon Ex.D.61 & D.76. Ex.D.61 is the bill given by Krishna Interiors to defendant dtd:12/7/2011 for the interior work done at 8th floor, Duparc, M.G.Road, amounting to Rs.24,52,974/- including tax, transportation charges, service tax. Ex.D.61(a) is the original of Ex.D.61. Ex.D.62 is the bill given by Krishna Interiors for 31 O.S.No.7192/2011 Rs.25,58,876/-. This was certified by the architect of defendant as per Ex.D.62(a) for a sum of Rs.24,52,974/-.
40. Ex.D.76 is the original bill given by Krishna Interiors to defendant dtd:02/7/2011 for the interior work done at 8th floor, "B" Wing, General Area amounting to Rs.24,52,974/-. Ex.D.76(b) is certified by the architect of defendant. Ex.D.76 (b) appears to be the original of Ex.D. 62(a). There is no difference in between Ex.D.62(a) and Ex.D.76(b). The total amount claimed under Ex.D.61 and under Ex.D.76 is one and the same.
41. On careful perusal of Ex.D.61, Ex.D.61(a), Ex.D.76 and Ex.D.76(b), it appears that Krishna Interiors has done some works in the 8th floor, 'B' Wing of defendant company. However, in Ex.D.61 and Ex.D.61(a), the 'B' Wing is not found.
42. The defendant examined the managing partner of Krishna Interiors as DW-2. He has deposed in his affidavit evidence that he has carried out the interior and 32 O.S.No.7192/2011 other alleged works of 8th floor of defendant company at M.G.Road and also redo some of the work i.e., Managing Director Cabin in 'A' Wing of 8th floor which is common to A & B Wings and the passages leading out of reception area of the 8th floor work was done by his firm. He has stated that the final bill raised by Krishna Interiors for interior and allied works of 'B' wing is inclusive of the works done in 'A' Wing and no separate bill was raised to it. He identified the said bill as Ex.D.76 and his signature on it as Ex.D.76(a) before court. Thus, according to DW- 2, the incomplete works of 8th floor 'A' Wing and redo of the said 8th floor 'A' wing was done by him and it is inclusive in the bill of 8th floor 'B' wing of the defendant's office. However, DW-1 has deposed that separate bill was prepared in that regard and said separate bill is Ex.D.61. As already discussed above, there is no mention of 'A' Wing or 'B' Wing in Ex.D.61. Except this difference, there is no difference between Ex.D.61 and Ex.D.76. It is specifically mentioned in Ex.D.76 that it is for 8th floor 'B' Wing.
33 O.S.No.7192/2011
43. The plaintiff has confronted the Xerox copy of this bill to DW-1 and it is marked as Ex.P.59. Ex.P.59 is the document No.9 produced by defendant along with its written statement. It is stated in the written statement that plaintiff's execution of work was so bad and so defendant was constrained to engage certain third parties to finish/complete/redo the work undertaken by plaintiff by spending extra money and it has produced copy of bill paid to 3rd party contractor which is evidenced by document No.9. Thus, Ex.P.59 is produced by defendant and Ex.P.59 is the bill issued by Krishna Interiors to defendant company pertaining to interior work done at 8th floor, Duparc, M.G.Road, as per details enclosed. In Ex.D.61 this gap at rectangle is not forthcoming.
44. In the cross-examination, DW-2 has deposed that defendant has placed work order for interior works mentioned in para 2 of the affidavit evidence i.e., "A" Wing 8th floor and he can produce the documents relating 34 O.S.No.7192/2011 to 'A' Wing. He admitted that in the work order, 'A' Wing is not mentioned. He has clearly admitted that in Ex.D.76 'A' Wing, 8th floor is not mentioned. He volunteers that he has done the work pertaining to 'A' Wing but no document is produced in that regard. Even if it is presumed that DW-2 has under taken the work of 'A' Wing, no evidence to show that how much work of 'A' Wing was carried out by him. Under these circumstances, from the evidence of DWs.1 and 2 coupled with Ex.P.59, Ex.D.61, Ex.d.61(a), Ex.D.76(a) and Ex.D.76(b), it is crystal clear that the Krishna Interiors have under taken the work of 8th floor 'B' Wing of defendant company and not the work of 8th floor 'A' wing of defendant company. Though DW-2 has deposed that he can produce the documents pertaining to it, he could not produce any such documents. Furthermore, DW-1 in the cross-examination denied the suggestion that they have put the whitener after 8th floor in Ex.P.59 and fabricated the document. He denied the suggestion that he has created Ex.D.76 after producing Ex.D.62 before court. According to him, 35 O.S.No.7192/2011 Ex.D.76 is not the original copy of Ex.D.62. After taking Xerox copy produced at Ex.D.62, they had sent the same to the auditor and Ex.D.76 is the auditors copy. When Ex.P.59 and Ex.D.61(a) are confronted to the witness and question was posed by the learned counsel for plaintiff to depose with regard to differences in those documents, the witness evaded the question and tried to give explanation and gave false evidence stating that there are no differences in Ex.D.59 and Ex.D.61(a) though there are differences. This demoner of witness was recorded by the presiding officer of this court who recorded the evidence of this witness. As already discussed above, there is a gap between 8th floor and Duparc in Ex.P.59 and that it is not forthcoming in Ex.D.61 and some more insertions i.e.., some numbers and reference numbers were mentioned in Ex.D.61 which are not forthcoming in Ex.P.59. Though these major differences were in between these 2 documents, the witness is not ready to accept the differences and deposed that both these are one and the same documents. These things establishes 36 O.S.No.7192/2011 that defendant tried to create documents to show that they got completed or redo work of 8th floor 'A' Wing through Krishna Interiors. But they failed to prove it as discussed above.
[
45. Ex.D.63 is the invoice for Rs.2,40,720/- i.e., the compensation invoice issued by one Chandok Financial Services for the month of June 2011. Likewise Ex.D.64 to Ex.D.75 are the compensation invoices issued by one Chandok Financial Services for the months of July 2011 to May 2012 for the rents paid by defendant company having been occupied 10th floor in said building. The defendant's counsel submitted that the defendant has taken the 10th floor on lease only for the purpose of facilitating plaintiff to do carpentry work in 8th floor. However, it is to be noted here that the contract between plaintiff and defendant was first executed during October 2010 and at the most it was completed before May 2011. But the receipts issued by said Chandok Financial Services was from June 2011. There is no much variation in rates of rents from June 37 O.S.No.7192/2011 2011 to May 2012. Only during August 2011 the rent was enhanced little bit and it continued till June 2012. Hence, mere production of Ex.D.63 to Ex.D.75 does not prove that because of delay caused by plaintiff, defendant has to take lease of 10th floor.
[
46. The above discussions clearly establishes that though the time frame was fixed to complete the work by plaintiff, it was delayed due to non- availability of labourers and due to supply of designs by defendant belatedly. Thus, there is some fault from both sides and hence, it cannot be said that plaintiff alone is responsible for delay in completion of work. Another major contention taken by defendant is that the work done by plaintiff was not satisfactory. As discussed above, some e-mails conversations between plaintiff and defendant establishes that there were some minor discrepancies and mistakes in completion of work by plaintiff and plaintiff under taken to rectify it and thus, the final bill raised by plaintiff was reduced to some extent by the architect of defendant. 38 O.S.No.7192/2011
47. Another main contention raised by defendant is that its architect is not competent to certify the final bill raised by plaintiff. In the cross-examination, DW-1 has deposed that the architect is not authorized person to certify the bills. He identified Ex.P.6 and 7 which were certified by its architect. Ex.P.6 and Ex.P.7 are the final bills pertaining to present case certified by the architect of defendant.
48. It is an admitted fact that the defendant had entrusted the interior work of 11th floor to plaintiff in August 2010 and after completion of 11th floor, they entrusted the work of present suit to the plaintiff. Pertaining to the earlier works done by plaintiff also, payments were not made properly by defendant company and plaintiff has filed 2 more suits pertaining to earlier works and in those case, after appearance and filing of written statement, the defendant compromised with plaintiff and paid the full amount as prayed in those suits. In this regard, plaintiff has produced certified copies of order sheet, compromise petition, plaint, e-mail with bills 39 O.S.No.7192/2011 of quantities, and purchase order and final bill pertaining to O.S.No.7190/2011 as per Ex.P.24 to Ex.P.30. The plaintiff has also produced certified copies of order sheet, compromise petition, plaint, e-mail with bills of quantities, purchase order, final bill and certificate pertaining to O.S.No.7191/2011 as per Ex.P.34 to Ex.P.40. In these 2 cases, the final bill of the plaintiff was certified by the architect of defendant and he has deducted some amount shown in the final bill of the plaintiff. Ex.D.76 is the final bill of defendant pertaining to Krishna Interiors and Ex.P.76(b) is the certificate and even it was certified by the same architect of defendant company. On careful perusal of all these documents, it is clear that Ex.P.30, Ex.P.40 and Ex.P.76(b) are certified by the same architect of defendant who is examined as PW-2 by plaintiff. [
49. PW-2 has deposed that he has certified the bills of plaintiff pertaining to 8th floor 'A' Wing and he identified his signature on Ex.P.6 as Ex.P.6(a). He has deposed that they are authority to certify the bills given by plaintiff. 40 O.S.No.7192/2011 In the cross-examination, PW-2 has deposed that as on the date of issuance of Ex.D.10, the work was still pending and defendant has engaged civil engineer, Krishna Interiors to do the work of next wing and he does not aware that Krishna Engineers were engaged by defendant to redo the work of interiors since the work done by plaintiff was not satisfactory. This Ex.D.10 is the e-mail sent by DW-1 to Shinto, the partner of PW-2 stating that the toilet was stinking and it is not possible to enter. This e-mail was written on 18/3/2011. However, according to PW-2, the work was not yet completed on that day. But he has certified the final bill of plaintiff as per Ex.P.6 on 25/1/2011 itself. As already discussed above, even during March 2011, the work of plaintiff was not completed. But only a small work was remained. counter signature of PW-2 on Ex.P.7 clarifies that he counter signed it on 23/2/2011, though it was raised on 25/1/2011. Almost all the works were completed by that time, because of some leakage or some minute problems, the subsequent conversations took place between plaintiff, defendant and 41 O.S.No.7192/2011 PW-2 and those minute mistakes were rectified by plaintiff subsequent to this date. Furthermore, plaintiff has not included the expenses for those repairs which were done subsequent to certificate given by P.W.2. [[[
50. The above discussion reveals that the defendant failed to prove that because of delay caused only from plaintiff, it sustained loss; the work done by plaintiff was not satisfactory and it got it redo by engaging Krishna Interiors. On the other hand, plaintiff by producing the original purchase order and additional bills of quantities as per Ex.P.15 which was confirmed by defendant and also the final bill certified by defendant's architect establishes that the total work done by plaintiff worth Rs.71,09,482/- and it was rounded off Rs.70,19,334.25 by defendant's architect and out of this amount, defendant has paid only Rs.49,97,081/- and the balance amount is Rs.20,54,664/-.
51. The defendant contended that it had paid Rs.49,97,081/- to plaintiff as full and final settlement. DW-2 has deposed that he is having documents in that 42 O.S.No.7192/2011 regard and he can produce them. But he failed to produce those documents. Hence, an adverse inference has to be drawn against defendant in this regard.
52. D.W.1 has deposed in his cross-examination that he does not know that one can secure Kota stone with only 3 feet x 11 inches and 1 foot x 11 inches. But the specification of defendant was 1 feet x 1 feet and 5 feet x 5 feet was not at all available. However, in e-mail sent by the employee of plaintiff to defendant, this fact is mentioned. D.W.-1 admitted that Kota stones were as per their designs and hence, they were removed. It is to be noted here that even though Kota stone was laid for major parts, plaintiff has removed it and laid other stones as per the specifications of defendant.
53. As per the fixing of air exhaust fan to the toilet is concerned, the same is not forthcoming in the designs furnished by defendant to plaintiff and hence, it is not fixed. Hence, this court holds that the plaintiff has proved that defendant is due a sum of Rs.20,54,664/- towards 43 O.S.No.7192/2011 principal amount as on the date of suit. Accordingly, issue No.1 and additional issue No.1 are answered in affirmative.
ISSUE No.2
54. The plaintiff has contended that the transaction between plaintiff and defendant is commercial in nature and hence, he is entitled for interest at 9% p.a. on the principal amount from the outstanding date till the date of filing of the suit totally amounting to Rs.32,411/- and also prayed for future interest at 12% p.a. There is no agreement between plaintiff and defendant regarding interest payment. However, admittedly the transaction between plaintiff and defendant was commercial in nature. Immediately, after completion of the work of the plaintiff, defendant has to pay entire sum to plaintiff by retaining 5% of the principal amount for a period of 6 months. However, without any admissible reasons, defendant retained some of Rs.20 Lakhs and odd. Hence it is liable to pay interest atleast 8% p.a. Because even if we keep the amount in fixed deposit in any nationalized bank, it 44 O.S.No.7192/2011 would fetch minimum of 8% interest p.a. Accordingly, issue No.2 is answered partly in affirmative.
ISSUE No.3
55. In view of findings on issue Nos.1 and 2 and additional issue No.1, this court holds that plaintiff is entitled for principal amount with interest at 8% p.a. Accordingly, issue No.3 is answered partly in affirmative.
ISSUE No.4
56. In view of findings on issue Nos.1 to 3 and additional issue No.1, this court proceeds to pass the following:-
ORDER Suit is decreed with costs for a sum of Rs.20,22,253/- with interest at 8% p.a. from 25/7/2011 till realization of amount.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then pronounced by me in the open Court on this the 21st day of February, 2015).
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.45 O.S.No.7192/2011
ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Mukesh Kumar P.W.2 - Ushash Belandi
b) Defendant's side :
D.W.1 - R.V.Srinivasan D.W.2 - Rampal Sharma II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 True copy of the resolution passed by the Board of Directors Ex.P.2 Print out of the revised bills of quantity sent by the architect of the defendant dtd: 18/10/2010 Ex.P.3 Purchase order dtd: 2/11/2010 Ex.P.4 Copy of the letter dtd: 30/12/2010 along with bills of quantity Ex.P.5 Copy of the final bill dtd:
25/1/2011 Ex.P.6 Copy of the final bill certificate dtd:
24/2/2011
Ex.P.6(a) Signature
Ex.P.7 Copy of the final bill dtd:
25/1/2011 along with 2 annexures
Ex.P.8 Copy of the legal notice dtd:
20/7/2011
Ex.P.9 Defendant's reply dtd: 18/8/2011
Ex.P.10 Plaintiff's rejoinder dtd: 22/9/2011
Ex.P.11 Postal acknowledgment
Ex.P.12 Print out of the e-mail dtd:
24/2/2010
Ex.P.13 Print out of the e-mail dtd:
27/12/2010
46 O.S.No.7192/2011
Ex.P.14 Print out of the e-mail dtd:
29/12/2010
Ex.P.15 Print out of the e-mail dtd:
3/1/2011
Ex.P.16 Print out of the e-mail dtd:
14/1/2011
Ex.P.17 Print out of the e-mail dtd:
14/1/2011
Ex.P.18 Print out of the e-mail dtd:
18/1/2010
Ex.P.19 Print out of the e-mail dtd:
2/2/2011
Ex.P.20 Print out of the e-mail dtd:
4/2/2011
Ex.P.21 Print out of bills of quantity dtd:
10/8/2010 Ex.P.22 Office copy of the final bill dtd:
23/8/2010 raised by plaintiff along with list of works produced in O.S.No.7190/2011 Ex.P.23 Final bill of the plaintiff approved by architect of the defendant dtd: 27/8/2010 produced in O.S.No.7190/2011 Ex.P.24 Certified copy of the order sheet in O.S.No.7190/2011 Ex.P.25 Certified copy of the compromise petition in O.S.No.7190/2011 Ex.P.26 Certified copy of the plaint in O.S.No.7190/2011 Ex.P.27 Print out of the final offer along with bills of quantity by e-mails produced in O.S.No.7191/2011 Ex.P.28 Print out of the purchase order dtd:
11/5/2010 produced in O.S.No.7191/2011 Ex.P.29 Office copy of the final bill dtd:
3/8/2010 raised by plaintiff produced in O.S.No.7191/2011 47 O.S.No.7192/2011 Ex.P.30 Final bill approved by architect of defendant dtd: 13/8/2010 produced in O.S.No.7191/2011 Ex.P.31 Office copy of the legal notice dtd:
20/7/2011 produced in O.S.No.7191/2011 Ex.P.32 Reply dtd: 18/8/2011 produced in O.S.No.7191/2011 Ex.P.33 Rejoinder of plaintiff dtd:
22/9/2011 produced in O.S.No.7191/2011 Ex.P.34 Certified copy of the order sheet in O.S.No.7191/2011 Ex.P.35 Office copy of the compromise petition in O.S.No.7191/2011 Ex.P.36 Certified copy of the plaint in O.S.No.7191/2011 Ex.P.37 Print of the final offer dtd:
5/8/2010 along with bills of quantity by email produced in S.C.No.2907/2011 Ex.P.38 Print out of the purchase order dtd:
10/8/2010 produced in S.C.No.2907/2011 Ex.P.39 Office copy of the final bill dtd:
21/9/2010 raised by plaintiff produced in S.C.No.2907/2011 Ex.P.40 Final bill dtd: 1/10/2010 approved by architect and produced in S.C.No.2907/2011 Ex.P.41 Office copy of the legal notice dtd:
20/7/2011 produced in S.C.No.2907/2011 Ex.P.42 Reply dtd: 18/8/2011 produced in S.C.No.2907/2011 Ex.P.43 Rejoinder dd: 22/9/2011 produced in S.C.No.2907/2011 Ex.P.44 Certified copy of the order sheet in S.C.No.2907/2011 48 O.S.No.7192/2011 Ex.P.45 Certified copy of the plaint in S.C.No.2907/2011 Ex.P.46 to 13 Certificates under Section 65(B) Ex.P.58 of the Indian Evidence Act Ex.P.59 Tax invoice dtd: 12/7/2011
(b) Defendant's side : -
Ex.D.1 E-mail dtd: 24/1/2011
Ex.D.1(a) 2nd part of Ex.D.1
Ex.D.2 to E-mails of different dates
Ex.D.10
Ex.D.11 E-mail dtd: 13/1/2011
Ex.D.12 E-mail dtd: 6/4/2011
Ex.D.13 One more E-mail dtd: 4/3/2011
Ex.D.14 Certificate under Section 65(B) of
Indian Evidence Act
Ex.D.15 to 45 photographs
Ex.D.59
Ex.D.60 CD
Ex.D.61 Office copy of tax invoice bearing
No.0007 dd: 12/7/2011 with its
enclosure
Ex.D.61(a) Original invoice of Ex.D.61
Ex.D.62 Office copy of the final bill
Ex.D.62(a) Signature
Ex.D.63 to 13 Rent receipts
Ex.D.75
Ex.D.76 Final bill dtd: 2/7/2011
Ex.D.76(b) 2nd page of Ex.D.76
(K.B.GEETHA)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
GVU/-
49 O.S.No.7192/2011
Judgment pronounced in open court
vide separate detailed judgment with the following operative portion:-
ORDER Suit is decreed with costs for a sum of Rs.20,22,253/- with interest at 8% p.a. from 25/7/2011 till realization of amount.
(K.B.GEETHA) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.50 O.S.No.7192/2011
51 O.S.No.7192/2011