Delhi District Court
M/S Inplan vs M/S Banaras Manufacturers Pvt. Ltd on 28 June, 2021
IN THE COURT OF SH. PRASHANT SHARMA:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
Civ DJ No. 612873/16
CNR No. DLWT01-003992-2016
In the matter of :-
M/s Inplan,
A registered Partnership Firm,
Through its partner Sh. Mayank Jain,
Having its office at:-
D-24, Pamposhi Enclave,
G.K.-I, New Delhi-48.
..........Plaintiff
Vs.
M/s Banaras Manufacturers Pvt. Ltd.
205 Vishwa Sadan, 9, District Centre,
Janakpuri, New Delhi-110058.
.....Defendant
Date of institution :-25.01.2005
Order Reserved On:-14.06.2021
Date of Decision:-28.06.2021
SUIT FOR RECOVERY OF Rs.34,71,803/-
JUDGMENT
1. Plaintiff namely M/s Inplan had filed present suit for recovery of Rs.34,71,803 /- alongwith pendentelite and future interest @18% per annum against defendant M/s Banaras Manfacturers Pvt. Ltd.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 1/722. Contents of the plaint are briefly stated below:-
"That plaintiff is a registered partnership firm of Engineer & Contractors. The said firm is engaged in the business of various types of construction activities. Defendant had invited a tender at Delhi for inception of factory at Plot no. 36, Sector-41, Greater Noida. In response to the same, plaintiff submitted its tender, which was accepted by defendant. Consequently, work was awarded to plaintiff by defendant vide work order dated 12.05.2001. The said work order noted terms and conditions based on which plaintiff had to execute the construction at Greater Noida. It included the condition that steel, cement and bricks requirement had to be met by defendant at fixed rate. After getting the said award of work plaintiff made all the arrangements of labour, staff, tools, plants and machinery at the aforesaid site at Greater Noida. Plaintiff started work in full swing and intimated the same to defendant vide letter dated 17.05.2001. Plaintiff issued R.A. Bill dated 14.05.2001 for a gross value of Rs.5 lacs in terms of order dated 12.05.2001. Vide letter dated 17.05.2001, M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 2/72 plaintiff requested defendant for supplying minimum quantity of steel and cement as per the schedule and quantity mentioned therein. Plaintiff also requested in the said letter dated 14.05.2001 to expedite payment for first R.A. dated 14.05.2001. Those letters were followed by letters dated 26.05.2001 and 20.06.2001, vide which plaintiff again requested defendant that requisite quantity of structural steel and tore steel be given to him. Plaintiff also highlighted in letter dated 20.06.2001 that because of failure on the part of defendant to arrange required loan of three phase electricity, submersible pump of defendant was non- operational which was adversely affecting the work order, due to non supply of water. Instead of making of payment of first R.A. bill dated 14.05.2001 and supplying requisite quantities of material, defendant in the third week of June, 2001 i.e. 23.06.2001 supplied revised drawings and specification with letter dated 13.06.2001 issued by M/s Safe, Architect. Due to the change of levels, designs, drawings and specifications, original agreed terms were substituted. In the wake of said revised M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 3/72 drawings and specifications, extra items and additional quantities were required by plaintiff. Same was duly intimated to defendant by plaintiff vide letter note dated June, 2001, addressed to Rahul Goyal, Manager, accounts of defendant. Plaintiff vide letter dated 26.06.2001 made it clear to defendant that defendant would be liable to pay an extra amount of Rs.30,000/- at the stage of eruption of Trusses. It was agreed and approved by defendant vide letter dated 10.07.2001. In the meanwhile, plaintiff submitted second R.A. Bill dated 19.06.2001 for net value of Rs.739348.18p and third R.A. Bill dated 29.06.2001 for a gross value of Rs.1026845.79p. Against the third R.A. Bill, plaintiff received part payment of Rs.75000/-on 26.06.2001. Plaintiff protested against the said letter vide its letter dated 30.06.2001. Plaintiff clarified vide said letter to defendant that due to delay in supply of material and delayed payments, plaintiff would not be able to complete the work by 31.08.2001, as defendant required plaintiff to execute extra item of raising plinth level by earth filling from the M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 4/72 earth to be brought from outside. So, plaintiff before undertaking the said extra item, vide letter dated 30.06.2001, intimated defendant that it would cost @118 per cubic meter. Defendant, after a delay of 16 days, vide letter dated 16.07.2001 communicated the approval of rate @115/- per cubic meter. When the bricks were not supplied regularly the plaintiff vide letter dated 06.07.2001 requested defendant to expedite atleast 50,000 numbers of bricks at an early dated. Defendant committed fundamental breach of contract by not making payment as per the schedule made in work order dated 12.05.2001 which adversely affected the progress and completion schedule of the work order. Plaintiff highlighted the said aspects vide letter dated 12.07.2001 to defendant. The cill level of windows were decided on 16.07.2001, which was confirmed by plaintiff vide letter dated 16.07.2001. Some of the decisions regarding brick work on both sides of columns, circular beam B1 in the toilet, brick work for toilet on plinth beams, connecting runners with trusses etc were given by consultant of defendant vide letter dated M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 5/72 17.07.2001 and copy of the same was supplied to plaintiff third week of July, 2001. The requisite three stage electricity which was required by plaintiff vide order dated 20.06.2001 was arranged by defendant on 29.07.2001 which adversely affected the progress of work order. Despite requests made by plaintiff, defendant neither improved the supply of material nor released payments for work done. Consequently, plaintiff submitted fourth R.A. Bill dated 08.08.2001 for a gross value of Rs.1607144/- after deducting part payment of Rs.175000/-, making the net payment amounting to Rs.1432144. Against the fourth bills submitted by plaintiff upto third week of 2001, defendant had made total part payment of Rs.3,25,000/- only. Due to non supply of material and delayed payments, plaintiff suffered losses on account of increased rates/non utilization and under utilization P & T Machine, labour and staff to the tune of Rs.50,000/- per month. Plaintiff informed the said false, failures and breaches to defendant vide letter dated 09.08.2001. In the said letter, defendant was called upon to make payments M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 6/72 with interest @21% which was followed by letter dated 27.07.2001, on the same lines. Further, due to changes in the drawings, designs, levels and specifications, the area of work could be executed by plaintiff as it was increased to 22283.10 sq. feet in place of originally stipulated area of 22,000 sq. feet as intimated by plaintiff by calculation dated June, 2001. Accordingly based on increased area, plaintiff submitted running bills without any objection from defendant. To cover delay in payment of running bills, defendant for the first time on 27.08.2001 verbally objected to raising of bills on the basis of increased area of building projection, all round canopy and eight round corners due to supply by defendant. Plaintiff immediately on the same day, in its letter dated 27.08.2001 requested defendant to clarify the position as to whether additional items necessitating increase in area as per revised drawings are to be executed or not and if not, then requested for issuance of further revised drawings accordingly. No reply was given by defendant in the writing in response to said letter dated 27.08.2001. However, M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 7/72 defendant verbally intimated that work is to be executed as per revised drawings involving extra items and additional quantities. Due to said delay and defaults on the part of the defendant, work order in question was not executed by 30.08.2001. The said work got prolonged beyond 30.08.2001. After 30.08.2001, no specific time period was set by defendant for completion of the work in question. Consequently, plaintiff issued 5th R.A. Bill dated 29.09.2001 for a gross value of Rs.1860588/- against defendant. As against the said gross amount, defendant made part payment from time to time, amounting to Rs.6,25,000/- upto September, 2001, as detailed in letter dated 01.10.2001 written by plaintiff. Further, defendant for reasons best known to him, at the back of plaintiff, appointed a valuer of the work done namely Lt. Col. A. K. Sanghi, and informed vide letter dated 06.10.2001 that as per the valuation of the said valuer an amount of Rs.3022/- was gathered balance in the account of plaintiff. Payment of Rs.1,50,000/- was sent by defendant with letter dated 06.10.2001. Plaintiff wrote letter dated M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 8/72 11.10.2001, in which it was made clear that statement of account of defendant as enclosed with letter dated 06.10.2001 had not relevancy so far as payment due to the plaintiff was concerned and plaintiff requested defendant to verify properly the five running bills submitted by plaintiff in terms of work order dated 12.05.2001. Same was followed by receipt dated 29.10.2001 regarding receiving payment dated 06.10.2001. Further, certain extra items regarding boundary wall, grill/ gate etc were decided to be constructed by defendant, which were not included in the original work order dated 12.05.2001 and rates for the approval of said items were submitted by the plaintiff. It was approved by defendant for lumpsum amount of Rs.22500/- vide letter dated 09.11.2001. Plaintiff submitted further six running bills dated 29.10.2001 for gross value of Rs.1874673.40p and net payment of Rs.1099673.40. Defendant for reasons best known to him after expiry of four months, raised baseless allegations vide letter dated 05.11.2001 to the effect that covered area was not 22283.10 sq. ft. as calculated by plaintiff M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 9/72 based on drawings, design and revised decision rather it was 19357 sq. ft. The said covered area of 19357 sq. ft. as per plaintiff was less than the approximate area given in letter dated 12.05.2001. The amount of 6th R.A. Bill was drastically reduced by defendant from Rs.1099673/- to Rs.385561/- against which part payment of Rs.2,50,000/- was made by defendant. Same was refuted, rejected and objected by plaintiff vide letter dated 09.11.2001. Further, plaintiff claimed that drawing issued on 02.11.2001 & 03.11.2001 involving execution of some extra and substituted items were not originally contemplated by the parties. The said extra and substituted items regarding front elevation work were disbursed on 28.11.2001 and the date for execution of the said extra and substituted items were not covered under original work order submitted by plaintiff vide letter dated 29.11.2001. Same was approved and agreed for lumpsum addition payment of Rs.6,10,000/- by defendant vide letter dated 11.12.2001. It was followed by letter dated 30.11.2001 of plaintiff whereby defendant was M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 10/72 informed that because of delays, defaults and failure on the part of defendant, the work had been prolonged by three months resulting into loss of Rs.50,000/- per month to plaintiff. It was also made clear therein that as directed by defendant, the work upto roof and casting thereof was only being executed and execution of other items was put on hold by defendant. Further, elevation /section/door /windows drawings were supplied by defendant on 28.11.2001 which required dismantling of 10.78 cubic meter of brick wall, already constructed. So, it required additional/extra payment for the dismantling of the brick work. Plaintiff accordingly submitted an estimate of the execution of said extra work vide letter dated 14.12.2001. The revised decision with regard to additional work of balance items left by another agency Guardroom was given on 17.12.2001. Accordingly, plaintiff submitted the rates for EIS and SIS with reference to Guardroom vide letter dated 17.12.2001 for approval. Consequently, plaintiff submitted 7th R.A. Bill dated 17.12.2001 for gross value of Rs.1967277/- and net payment of Rs.942277/-.M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 11/72
Plaintiff also submitted 8th R.A. Bill dated 15.12.2001 for gross value of Rs.2228115 & net payment of Rs.1203115/-. Defendant did not make payments in terms of said bills and also with regard to previous bills after 05.11.2001. The net amount of each bill was arrived by at plaintiff after deducting the value of the price of material supplied by defendant and the part payments already made. So, upto December, 2001, an amount of Rs.15 lacs was due against against defendant which was never paid to plaintiff for execution of work. Same was brought to the notice of defendant vide letter dated 03.01.2002, vide which defendant was called upon to make payment with interest @21% per annum, apart from loss @50,000/- per month on staff, overhead etc. Same was followed by letter dated 07.02.2002 vide which plaintiff prayed for payment of Rs.15 lacs with interest. In the meanwhile, 9th R.A. Bill dated 28.02.2002 for gross value of Rs.2601467/- and net value of Rs.1476467/- was submitted by plaintiff to defendant. Consequently, a meeting was held between the parties from 30.03.2002 in which it was made clear that for completion M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 12/72 of shed no.1 minimum amount of Rs.10 lacs was further required so that said work can be done in 60 days. Defendant agreed on 30.03.2002 that it shall release the unpaid amount of Rs.15 lacs yet in first week of April, 2002. It released only part payment of Rs. One lac on 03.04.2002. Same was objected to by plaintiff vide letter dated 08.04.2002. making it clear that further execution of work will depend upon release of unpaid amount. Defendant did not reply the said letter of plaintiff. Subsequently, defendant issued letter dated 11.06.2002 raising false allegations that about 76-70% payment against the total awarded value had been made and only 64% work was executed by plaintiff. Same was refuted by plaintiff vide its reply dated 12.06.2002 making it clear that cheque payment made by defendant was Rs.14,25,000/- and value of material issued by defendant including used was Rs.1546750/-, though the total value work upto 6th R.A. Bill certified by the consultant/valuer namely Lt. Col. A. K. Sanghi was Rs.4041787.60 and as per 10th R.A. Bill dated 07.06.2002 the total value of work done including cost of M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 13/72 defendant's material used extra items executed was Rs.4202200/-. Further, plaintiff highlighted that value of unused material of defendant lying at the site was for an amount of Rs. One lac. Further, over and above the original work order, extra items /substituted items of about Rs.10 lacs had been ordered. So, complete value of work as per actual area including capital EIS/SIS was Rs.65 lacs and could not be confined to Rs.49 lacs. In the end of July, 2002 defendant asked plaintiff to submit details of third parties and their payment to be made by plaintiff in connection to the work order in question and consequently, plaintiff sent letter dated 31.07.2002. Further, after receiving said letter dated 31.07.2002 defendant resiled from his commitments and asked plaintiff that plaintiff should submit bills, challans etc of each party/creditor. Plaintiff claimed that said demand of defendant was malafide and motivated. Accordingly, plaintiff rejected the said demand vide its letter dated 19.08.2002. Consequently, defendant instead of making payment of Rs.13 lacs due to plaintiff, vide letter dated 24.08.2002, came forward with M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 14/72 false and baseless allegations that payments are to be made directly to suppliers and labours as per the requirement of capital UPFC and bills/vouchers/challans are required. The said allegation was made in letter dated 24.08.2002 issued by defendant and it was refuted by plaintiff vide letter dated 03.09.2002. Plaintiff highlighted that there is no privity of contract between UPFC and plaintiff. Further plaintiff claimed that alleged requirements or conditions of UPFC were not part of the work order dated 12.05.2001. So, plaintiff was not liable to UPFC or for compliance of the requirements of UPFC. Subsequently, plaintiff submitted 11 th R.A. Bill dated 30.09.2002 for net payment of Rs.1740582/-. Instead of making the said payment, defendant issued legal notice dated 07.10.2002 based on false pleas in order to wriggle out of its liability in terms of work order dated 12.05.2001. All the said allegations of letter dated 07.10.2002 were refuted by plaintiff vide its letter dated 22.10.2002. Plaintiff reiterated that defendant was bound by the terms and conditions of work order dated 12.05.2001. Subsequently, in response to letter M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 15/72 dated 22.10.2002 defendant did not give any reply rather issued letter dated 12.12.2002, stating false plea that Rs.6.22 lacs were paid extra to plaintiff. Same was refuted by plaintiff vide its detailed letter dated 21.12.2002.
consequently, good sense prevailed over defendant and defendant released a part payment of Rs.8.25 lacs in January, 2003. Defendant also assured plaintiff that it would give further part payment of Rs.2 lacs on execution of work at full swings to plaintiff. So, after receiving part payment of Rs.8.25 lacs plaintiff executed the work with full swings. Plaintiff executed work of extra item of earth work and submitted the rates of the said work to defendant vide letter dated 17.02.2003. There had been execution of work in between because of delay on the part of defendant in supply of requisite material as intimated to defendant vide order dated 04.02.2003 and 26.02.2003. Despite said delay on the part of defendant, plaintiff continued with the work and submitted twice running bill dated 24.04.2003 for net payment of Rs.1228219/- after deducting the amounts already paid and value of material M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 16/72 issued to the defendant for payment. Defendant instead of making payment of said bill, issued letter dated 26.04.2003 which was based on false allegations. Same were refuted by plaintiff vide letter dated 08.05.2003. Subsequently, plaintiff issued letter dated 27.05.2003, calling upon defendant to pay the due amounts to plaintiff. Subsequently, plaintiff issued letter dated 02.07.2003 alleging that delay in execution of work was attributable to the defendant. Plaintiff claimed that total value of work done upto April 2003 was Rs.5690042.05p. After deducting the value of material supplied by defendant and payments made by defendant, the net amount payable as per bill dated 24.04.2003 was Rs.1228219. The work continued thereafter also by plaintiff. Subsequently, plaintiff vide letter dated 16.08.2003 requested defendant to issued work contract deduction certificate, account of the material supplied to plaintiff and income tax TDS etc. In first week of November, 2003 i.e. on 01.11.2003 defendant asked the staff and chowkidar of plaintiff to vacate site and supposed to get the work executed by engaging M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 17/72 another agency without making payment for the work done by plaintiff. It was done by defendant without recording final measurement and without terminating the contract. So, plaintiff was constrained to file a civil suit on
03.11.2003 in the Court of Civil Judge, Senior Judge, Gautam Budh Nagar, Noida. Summons in the said suit were issued against defendant. Consequently a revenue officer was appointed as local commissioner by the concerned court vide order dated 04.11.2003 for site visit and for filing report regarding the extent of work done by plaintiff. The said local commissioner visited the site on 07.11.2003 and prepared the drawings of the work done by plaintiff specifying the measurements of the structure/items which he submitted to the Court. After visit of said local commissioner defendant forcibly took over the tools, plant and materials of plaintiff lying at the site and threw away the plaintiff's staff and chownkidar from the said site and in such manner dispossessed plaintiff from the said site.
Defendant filed written statement on 05.12.2003 in the said suit stating that it had M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 18/72 inducted another agency and was getting the balance work executed through the said agency. In the wake of said development, suit of plaintiff based on relief of injunction got infructous. Therefore, plaintiff withdrew the said suit after getting liberty from the Court for filing fresh suit. Consequently, this suit was filed by plaintiff. In the wake of said averments, plaintiff claimed following amounts from the defendant, amounting to Rs.3471803/-.
(a) Work done but not paid as per 12th bill dated 24.04.2003 and further work measured /reported by local commissioner upto 07.11.2003 as per details given in Annexure P-1 annexed herewith amounting to Rs.17,74,189/-
(b)Losses suffered by way of additional expenses on staff, overheads and loss of hire charges of T& P due to prolongation of the work beyond 31.08.2001 till 10.11.2003 as per details given in Annexure P-2 annexed herewith amounting to Rs.5,29,400/-.
(c) Losses of interest @12% per annnum on delayed payments as per details given in M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 19/72 Annexure P-3 annexed here with amounting to Rs.3,93,380/-
(d)Cost/price of materials and T & P taken over and not returned by the defendant as per details given in Annexure P-4 annexed herewith amounting to Rs.2,84,708/-.
(e) Loss of profit on balance unexecuted value of work @15% as the defendant did not cooperate and allow the plaintiff to complete the same as per details given in Annexure P-
5 annexed herewith amounting to Rs.1,18,47/-
(f) Interest on all the above amounts of Rs.30,99824/- from 11.11.2003 till the date of payment @12% per annum which till the date of filing of the suit i.e. 10.11.2004 amounting to Rs.3,71,978/-
Total Rs.3471802.88p Or say Rs.34,71,803/-
Plaintiff also prayed for pendentelite and future interest @12% per annum from the date of filing of the suit till realization.
3. Defendant filed written statement in response to the claims of plaintiff taking preliminary objection viz that suit lacked cause of M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 20/72 action, that suit was barred in view of previous suit bearing no. 418/2003 filed by plaintiff in the concerned Court at Gautam Budh Nagar, that suit was not properly valued, that proper court fees was not paid, that suit was barred by limitation, that suit was not filed by proper authorized person and that bills referred in the plaint were raised by plaintiff in arbitrary manner and not in accordance with the agreed schedule of payment attached to the work contract. On merits case of plaintiff was refuted. Defendant explained that in terms of agreement of between the parties due payments were made to plaintiff. Further, the approximate area of work was 19357 sq. ft. for which defendant had given work order for sum of Rs.49 lacs. The material such as steel, cement etc had to be supplied by defendant and the value of the said material had to be deducted from the total value of contract. From the very beginning plaintiff was in the habit of making mountain out of a mole. Plaintiff wanted to exploit the defendant as defendant wanted the work of the requisite quality. Further, defendant claimed that it compensated the plaintiff for whatever extra items, which were executed by plaintiff apart from the work contract in question based on letter dated 12.05.2001. Further, plaintiff never sent bills in terms of the said contract rather continued to supply running bills which were inflated and manipulated. It was pointed out that on one hand, plaintiff alleged that defendant did not supply material within agreed time and on other hand, plaintiff raised one bill after the other. As such once material was not M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 21/72 supplied by defendant, plaintiff ordinarily should not have executed the work further. Since plaintiff had done so, therefore, conduct of plaintiff was contradictory. Further, in terms of clause 4 of the letter dated 12.05.2001, the payment had to be made to plaintiff subject to the work completed and certified upto that date by an independent valuer. Plaintiff did not get his bills certified in terms of the said contract. Defendant company is in export business and Managing Director namely R. K. Gupta ordinarily remained outside the country. So, defendant with a view to monitor the progress of the work in question, appointed Lt. Col A. K. Sanghi as valuer, who inspected the building construction on 31.08.2001 who submitted his report vide letter dated 12.09.2001 noting that the value of executed work as on 31.08.2001 was assessed for Rs.985000/-. Further, defendant claimed that at the time of award detailed drawings were not made. The structural drawings were prepared on the advice of the valuer who opined that structural drawing had not been made and without the same the work could not be conducted. So, on the basis of advice of said valuer, structural drawings were prepared. The said drawings were clarificatory in nature for facilitating execution of work. As such there was no inconsistency between architectural drawings and structural drawings. As a matter of fact, architectural drawings laid down broader parameters and structural drawings went to minute details at the micro level. Plaintiff was not prejudiced by the issuance of said structural drawings. The allegations of plaintiff M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 22/72 were false regarding defendant delaying the execution of work and basically was a method of arm twisting the defendant so that plaintiff could extract more and more money. Further, defendant claimed that statement of account submitted by defendant to plaintiff alongwith letter dated 06.10.2001 depicted true pictures of dealings between the parties. As such defendant had been in a debit balance of Rs.3022/- in the account of plaintiff based on said statement of accounts. Further, defendant had informed plaintiff that the amount of five bills submitted by plaintiff had been credited in the account of plaintiff on the basis of work and covered area certified by the valuer Lt. Col. A. K. Sanghi and it was so agreed by plaintiff. Further, defendant vide his letter dated 10.07.2001 had agreed for payment of Rs.30000/- for erection trusses to plaintiff. Defendant further, vide letter dated 16.07.2001 agreed to reimburse plaintiff filling of good earth @115/- per cubic meter. Similarly, defendant vide letter dated 09.11.2001 agreed to award the contract of fixation of grills on the boundary wall and main gate. Said confirmations clearly reflected the bonafide of defendant. Further, plaintiff had grievance that certain items had been outside the scope of work awarded to him and, therefore, defendant agreed to pay Rs.6.10 lacs, extra for the said work. As such based on said payments, nothing remained to be paid by defendant to plaintiff. Further, defendant vide letter dated 11.06.2002 brought to the notice of plaintiff that till that date plaintiff was paid a total sum of Rs.3758000/- including payment M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 23/72 and payment for material on their behalf which constituted around 76.70 % of the total value of contract of Rs.49 lacs whereas plaintiff had completed only 64% till that date and remaining 36% work was pending. So, in view thereof, pressure made by plaintiff for the payments of the amounts at the time were unreasonable. Further, in response to the expenditure of Rs.783000 incurred by plaintiff on account of payments made by plaintiff to third parties, for completion of work awarded by defendant, it was claimed that defendant wanted to settle the matter amicably and therefore, asked plaintiff that he should furnish the details of persons to whom that payment had to be made. On conducting inquiry, defendant came to know that most of the said third parties named by plaintiff were fictitious. Plaintiff failed to supply further information regarding those third parties and therefore, had concocted false stories for getting unjust enrichment to the tune of Rs.783000/-. Further, defendant vide letter dated 24.08.2002 stated that plaintiff had failed to fulfill its verbal assurance of providing the requisite details like bills, challans, trade tax number etc of the parties (i.e. supplier/labour) to whom payments were made so that defendant could make the payments to the said parties. The said details were asked for compliance of requirements of UPFC. Defendant sent various letters received from UPFC showing dissatisfaction of UPFC about the progress of work. Defendant also requested plaintiff to visit the office of UPFC and satisfy UPFC. Letters of UPFC as such made no impact on plaintiff.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 24/72Finally, defendant after getting fed up with said attitude of plaintiff served a legal notice dated 07.10.2002 upon plaintiff and in response to the same, plaintiff simply blamed defendant for non payment of money. In the process a sum of Rs.6.22 lacs was paid in excess to plaintiff by defendant and in this regard, defendant sent letter dated 12.12.2002 asking plaintiff to refund said amount. Plaintiff did not pay any heed to the said letter. Further, defendant who had spent about Rs.40 lacs on the building and whose project had to be completed by 31.08.2001 by plaintiff, had no option but to buy peace and therefore shell out further amount of Rs.8 lacs as per admission of plaintiff to quench his thirst. The said payment as such did not satisfy the thirst of plaintiff as plaintiff continued to raise dispute with defendant. Defendant vide letter dated 26.04.2003 also brought to the notice of plaintiff that an overpayment of Rs.11.34 lacs had been made to him and advised plaintiff that work at the site in question must be completed speedly without delay. Defendant admitted that he had taken a loan from UPFC for construction of building and that UPFC for construction of building and that UPFC was monitoring the progress of the said project. In terms of sanction letter of UPFC the loan had to be released as under:-
a) Laying of Foundation 10%
b) Construction upto roof level 30%
c) Lanter of the roof 24%
d) Flooring and plaster 7%
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 25/72
e) Installation of Doors and Windows 20%
f) Finishing - white was and paint etc 9%
Terms and conditions of loan also provided that if work did not proceed in time or instalments of loan released were not released, the UPFC shall cancel the loan and entire sum shall be returnable forthwith to UPFC. So, defendant faced double whammy of UPFC and the contractor. In terms of the sanction of loan, the UPFC was required to release further instalments of loan on completion of work as per above schedule. Plaintiff did not perform the work according to the said schedule. Once building work did not progress as per schedule, UPFC stopped release of further instalments of loan. The UPFC vide letter dated 19.06.2003 informed defendant that the work had been completed to the extent of 60% only. As such plaintiff did not render any cooperation with UPFC in carrying out a joint inspection of the work completed, which indicated non cooperative attitude of plaintiff. On certain occasions, plaintiff categorically threatened defendant with dire consequences. Further, it is a common knowledge that almost 100% of the project upward of the value of Rs.50 lacs come into existence on the funds made by the term mending institutions or banks. The terms lending institutions have their own time tested standard norms of released installments of loan. The promoters of the projects have to comply with the said terms and conditions of lending institutions. If the contractors of the promoters did not cooperate with lending institutions or did M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 26/72 not comply with terms and conditions of lending institutions, then project cannot come through. Even after the report of UPFC on the completion of work, defendant sought a report from the valuer Lt. Col. A.K. Sanghi about the total value of contract work. The valuer prepared his report in consultation with plaintiff and Sh. Rahul Goel, representative of defendant company. The valuer while including the value all the additional items concluded in his report dated 23.07.2003 that total amount for which contract work was done was Rs.5433369/- and that there was balance work of the contract to the tune of Rs.8 lacs. Defendant vide its letter dated 14.08.2003 requested Lt. col. A. K. Sanghi to accept the remaining work of contract for Rs. 8 lacs. On the refusal of Lt. Col. A. K. Sanghi, defendant again vide letter dated 17.09.2003 informed Lt. Col. A. K. Sanghi that he could get the work completed through Sh. Mayank Jain of M/s Inplan at the estimate submitted by him on the basis of performance guarantee submitted by Sh. Mayank Jain. However, plaintiff refused the proposal. Apparently, the valuer also colluded with plaintiff and the offer of defendant was not accepted thereby compelling defendant to award the contract to another contractor. The defendant had paid a plaintiff a total sum of Rs.46.96 lacs as per the statement of account. The summary of said payments made by defendant are as follows:-
1. Cheques paid Rs.25,50,000/-
2. Material supplied Rs.1849089/-
3. TDS & Ors Rs.297475/-M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 27/72
A perusal of the above statement reflected that plaintiff was over paid. Even if the report of independent valuer is to be believed to be true than the value of total work executed upto 23.07.2003 was assessed at Rs.46 lacs and defendant had paid plaintiff Rs.46.96 lacs till that date. So, version of plaintiff made in the plaint was wrong. Further, in terms of the report of UPFC the work had been completed to the tune of 60% & 62% in terms of actual cost of the project. In terms of schedule of payment attached to the work contract the payment had to be made on the basis of work completed. So, plaintiff took more amount than to which he was entitled from defendant. On various occasions defendant sent statement of account to plaintiff but plaintiff never reconciled the said account by comparing with the books of account maintained by him. Further, plaintiff never pointed out any discrepancy in the statement of account maintained by defendant which indicated that accounts maintained by defendant were correct. In such circumstances, defendant thought that he could not wait till infinity, therefore, under compelling circumstances terminated the contract with plaintiff and awarded the contract to another contractor. Apart from that defendant claimed that he filed a complaint against plaintiff under Section 406,420,467,468,471 & 472 IPC in the concerned criminal court, based on the harassment given by plaintiff. Defendant also stated that project in question had to be completed by 31.08.2001 at the cost of Rs.49 lacs. After providing Rs.6 lacs for additional items M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 28/72 the cost as originally envisaged comes to Rs.55 lacs, but the project could be completed only in September 2001 at the total cost of Rs.75.62 lacs (i.e. Rs.46.96 lacs paid to plaintiff and Rs.28.66 lacs paid to second contractor). So, due to non compliance of the work awarded to plaintiff, defendant had to incurr a sum of Rs.1185600/- in addition to amount mentioned in work contract in question. Defendant, therefore, sustained following losses amounting to Rs.81.89 lacs.
Cost Overrun: Rs.75.33 lacs - Rs.54.96 lacs Rs.20.37 lacs Time Overrun Extra burden of interest Rs.29.67 lacs @18% for 3 years on Rs.54.96 lacs Penalty paid to Greater Noida Authority Rs.11.85 lacs Loss of reputation with the UPFC Rs.10.00 lacs Mental Agony and torture Rs.10.00 lacs Total: Rs.81.89 lacs Based on said reply, defendant prayed for dismissal of the suit and also prayed that he must be granted compensation to the tune of Rs.81.89 lacs from the plaintiff.
4. Replication was filed by plaintiff denying the version of defendants. He reiterated the facts as mentioned in the plaint, which are not repeated here for the sake of brevity.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 29/725. Defendant had filed Written Statement-cum-Counter Claim in the present suit. The counter claim was registered separately bearing Civ. DJ No. 612873/16. Ld. Predecessor of this court noted in the order dated 03.05.2018 that present case and said counter claim are clubbed together for the purpose of evidence.
6. After completion of pleadings, following issues were settled on 09.03.2007 :-
1. Whether this court does not have the territorial jurisdiction to entertain and adjudicate upon the subject matter of the suit ? OPD.
2. Whether the suit is barred by limitation ? OPD.
3. Whether the suit has not been valued properly for the purposes of court fee and court fee in accordance with law is not being affixed ? OPD.
4. Whether the plaint has been signed and verified and the suit is instituted by a duly authorized person ? OPP.
5. Whether the plaintiff is entitled to the amounts claimed in the para 33 of the plaint ? OPP.
6. Whether the plaintiff is entitled to interest on the amounts found due and payable by the defendant ? If so, at what amount, at what rate and for what period ?
7. Relief.
7. Subsequently, matter was fixed for plaintiff's evidence.M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 30/72
8. Plaintiff examined only one witness i.e. PW Mayank Jain for proving his case. He tendered in evidence his affidavit Ex.PW1/A, in which, he reiterated the contents of plaint. He relied upon following documents :-
(i) Ex PW1/1:- Certificate of Registration
(ii) Ex PW1/2 :-Certified copy of names of registered partners of the plaintiff issued by the Registrar of firms in Form A
(iii) Ex PW1/3 to Ex PW1/5 :- Postal receipts.
(iv) Ex PW1/6 :- Letter dated 13.06.2001
(v) Ex PW1/7 :- Note dated June, 2001
(vi) Ex PW1/8 :- 2nd RA Bill dated 19.06.2001
(vii) Ex PW1/9 :-3rd RA Bill dated 29.06.2001
(viii) Ex PW1/10 :- letter dated 30.06.2001
(ix) Ex PW1/11 :- letter dated 01.10.2001
(x) Ex PW1/12 :- Letter dated 11.10.2001
(xi) Ex PW1/13 :- Letter dated 09.11.2001
(xii) Ex PW1/14 :- Courier Post
(xiii) Ex PW1/15 :- Receipt dated 29.11.2001
(xiv) Ex PW1/16 to Ex PW1/18 :- Letter dated 29.11.2001 and is postal receipt & Letter dated 30.11.2001 respectively.
(xv) Ex PW1/19 to Ex PW1/25:- Letters dated 14.12.2001, 17.12.2001, 15.11.2001, 8th RA Bill dated 15.12.2001, Letters dated 03.01.2002 & 07.02.2002 & 9th R.A. Bill dated 28.02.2002.M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 31/72
(xvi) Ex PW1/26 to Ex PW1/30 :- Letters dated 08.04.2002, 12.06.2002, postal reciepts and 10th RA Bill dated 07.06.2002 respectively.
(xvii) Ex PW1/31 to Ex PW1/34 :- Noted dated 31.07.2002 and its postal receipts and 7kth RA Bill dated 05.08.2002.
(xviii) Ex PW1/35 to Ex PW1/37:- Letter dated 24.08.2002, registered post and AD card.
(xix)Ex PW1/38 :- Letter dated 03.09.2002 (xx)ExPW1/40 to Ex PW1/43:- 11th RA Bill dated 30.09.2002, Letters dated 04.02.2003, 17.02.2003, 26.02.2003 (xxi)Ex PW1/44:- Certified copy of the report of Local Commissioner.
(xxii)Ex PW1/45:- Delhi schedule of rates (xxiii)Ex PW1/46 :- Vourches of salrary and wages paid to the workers/staff.
(xxiv)Ex PW1/47 :-Pages of ledger accounts.
(xxv)Ex PW1/48 :- certified copy of balance sheets for the yeards ending 31.03.2001, 31.03.2002, 31.03.2003.
(xxvi)Ex PW1/49 :- vouchers
9. After examining PW Mayank Jain, plaintiff's evidence was closed and matter was fixed for defendant's evidence.
10. Defendant examined two witnesses i.e. DW Sh. R.K. Gupta and DW Jagbir Singh.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 32/7211. DW R. K. Gupta tendered in evidence his affidavit Ex.DW1/X in which he reiterated the contents of written statement. Same are not repeated here for the sake of brevity. He relied upon following documents:-
(i) Ex DW1/1 :- Letter dated 11.06.2002
(ii) Ex DW1/2 & 3 :- Letters
(iii) Ex DW1/4 :- FAX dated 13.08.2002
(iv) Ex DW1/5:- Letter dated 24.08.2002
(v) Ex DW1/6:- Legal noticed dated 07.10.2002.
(vi) Ex DW1/7 to 24:- Letters.
(vii) Mark D1 to D-15 :- documents.
12. DW Jagbir Singh tendered in evidence his affidavit Ex A-2. In the said affidavit, he deposed that he was proprietor of M/s Shiva Construction, Rohini, New Delhi and was a building contractor. He claimed that counter claimant had engaged him for completing the construction work at factory i.e. Plot no. 36, Sector-41, Greater Noida, UP which he completed after he was awarded the work contract in November, 2003. Consequently, after completing work in June 2004 he raised bill Ex DW1/13 against counter claimant. Besides that certain minor deficiencies were completed in and around September, 2004.
13. After examining said witnesses, defendant's evidence was closed and matter was fixed for final arguments.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 33/7214.Final arguments were heard and matter was reserved for pro- nouncement of judgment.
15.In my subsequent paragraphs, I will be deciding the issues settled by the court on the basis of appreciation of record of this case.
ISSUE NO. 1Whether this court does not have the territorial jurisdiction to entertain and adjudicate upon the subject matter of the suit ? OPD.
16. Aforesaid issue was decided against defendant and in favour of plaintiff vide order dated 09.03.2007. Contents of said order needs no repetition. Suffice it is to conclude that this court has the terri- torial jurisdiction to entertain and adjudicate upon the subject mat- ter of this suit.
ISSUE NO. 2, 3 & 4.
Whether the suit is barred by limitation ? OPD.
Whether the suit has not been valued properly for the purposes of court fee and court fee in accordance with law is not being affixed ? OPD.
Whether the plaint has been signed and verified and the suit is instituted by a duly authorized person ? OPP.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 34/7217. Aforesaid issues were struck off on the basis of submissions made by counsels for the parties as noted in order dated 08.07.2019. Therefore, no adjudication on the said issues is re- quired.
ISSUE NO. 5 & 6Whether the plaintiff is entitled to the amounts claimed in the para 33 of the plaint ? OPP.
and Whether the plaintiff is entitled to interest on the amounts found due and payable by the defendant ? If so, at what amount, at what rate and for what period ?
18. Both the aforesaid issues were based on the reliefs sought by plaintiff in 'para 33' of the plaint as noted in page 19 and 20 of this judgement.
19. The nucleus of present litigation lies work order dated 12.05.2001 Ex.P-2. Said work order as such contained the terms and conditions of agreement between plaintiff and defendant. As per said agreement, defendant awarded contract for construction of factory site plot no. 36, Sector 31, Kasana, Greater Noida, UP (hereinafter referred as 'site in question'). Contents of said work order and payment schedule of the amount to be paid by defendant to plaintiff is mentioned below in verbatim:-
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 35/72May 12, 2001 To, Inplan, D-24, Pamposh Enclave, G.K.-1, New Delhi- 110048.
Ref : Contract Award for the construction of Factory Site at Plot No. 36, Sector- 31, Kasna, G. Noida.
Dear Sir, With reference to your quotation ref. no. Inp/TDR/99-2000, 282, dated 22nd December, 2000, regarding above-mentioned subject, we are awarding this contract to your firms on following terms and conditions :
1. The company will pay @ Rs. 245/Sq. ft which includes labour, material, direct expenses and other overheads for the construction of main building (Area approx. 20,000 Sq. Ft) and Contract amount will be approx. 49,00,000/- (Forty Nine Lakh only).
2. Quality of construction should be as per specification of Annexure-II, enclosed.
3. Materials like Steel, Structural Steel, Cement and Bricks will be supplied by us, which will be debited in your account at the rate of Rs. 15,000/- per MT, Rs. 17,500/ per MT, Rs. 140/per bag, Rs. 1225/per 1000 numbers respectively.
4. The payment will be made according to the payment plan as per annexure-I enclosed, subject to the work completed and certified up to that day.
5. You are required to submit the work in progress status report on 15th and 30th of every month. We will try to make payment on 20th and 5th of every month accordingly.
6. You requested to complete maximum work before 28th of June 2001 as we have to show structure to Greater Noida authority on 29th of June, 2001. And rest work should be completed maximum 31th August, 2001.
7. You are requested to arrange at least three quotations of building materials suppliers for the material required for construction and start work as per drawing already given to you.
8. Water, Electricity, Boundary Wall and Guardroom is already there at site.
Kindly read above mentioned points carefully and accept this contract and start work immediately. We wish you good luck and long business relationship forever.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 36/72Thanking you Sincerely yours R.K. Gupta (Managing Director) ANNEXURE- 1 Payment Schedule/ Completion of Work Payment at Agreement / LOI 10% Payment at Plinth Beam Bottom Level 10% Payment at Tie Beam Bottom Level 15% Payment at Bottom Cord Level 15% Payment at Erection of Trusses 15% Payment at Roofing 10% Payment at Plastering & Door/ Windows 10% Payment at Flooring 5% Payment at White Washing/ Painting 5% Payment at Finishing 5%
1. In addition to aforesaid details, said agreement was accompanied with specification for construction of factory for defendant at the aforesaid site. Said details are mentioned below :-
ANNEXURE- II SPECIFICATION FOR CONSTRUCTION OF FACTORY FOR BANARAS MANUFACTURERS PVT. LTD., AT GREATER NOIDA BUILDING STRUCTURE
1. Columns, Beams & Slab in RCC with M20 grades concrete.
2. Brick Walls Cement Coarse sand Propotion of 1:6.
3. Cement-Laxmi ACC, CCI, JK or Vikram/ Binani similar ISI Marked/ make available locally.
4. Bricks -Locally available Bricks of 1st class.
5. Badarpur-Golden yellow good quality Badarpur.
6. Internal Cement plastering 1:6 (1 cement : 6 fine sand).
7. External Cement plastering 1:6 (1:2.5 C. Sand : 2.5 Find Sand) M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 37/72
8. Shuttering with Ply. & steel in column & beams.
9. DPC - 40 mm thick in C.C. 1:2:4 with WPC make cico no. 1 with a coat of Bitumen.
FLOORING :-
1. Sub base -- 25 mm thick fine sand.
2. IInd Layer -- 50 mm thick P.C.C. with ration 1:4:8.
3. Top Layer -- 40 mm thick cement concrete with Ration 1:2:4.
STEEL WORK :-
1. Tor Steel in R.C.C. work - Rathi/ Kamdhenu/ ISI Marked as per 15 Specifications.
2. Structural steel - IISCO, TISCO, SAIL.
FINISHING :-
1. White Wash Three Coats inside and water proof or paint (2 coats) outside.
2. Painting (2 coats) on steel, wood with primer (1 coat), Berger, Shalimar, Nerolac, Garware, J&H. PLINTH PROTECTION :-
1. 750 mm wide with 50 mm thick C.C. 1:3:6 over 75 mm bed of dry Brick bats.
SANITARY WORK :-
1. C.I. Pipe of SKF, MR/F, Or similar ISI make.
2. G.I. Pipe in prakash/ jindal or similar make for water supply pipe.
3. W.C, wash basin etc. of parryware/ Hindustan make in white colour.
4. PVC ISI marked rain water pipes.
ROOF TREATMENT ON R.C.C. ROOF :-
1. Mud Phuska/ Brick bat coba ROOFING :-
Corrugated a.c. sheets - ISI Marked.
20. After perusing aforesaid work order I find that plaintiff had to make construction at the site in question in a time bound manner.
Further, the area which plaintiff had to construct was 20000 sq. ft.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 38/72approximately, which means that specific area which had to be constructed by plaintiff was not mentioned there. The agreement did not note as to how specific area of construction had to be measured in consonance with plaintiff and defendant. Plaintiff was supposed to submit status report with regard to progress of said construction on 15th and 30th of every month. Subsequently, defendant had to make payment on 20 th and 5th of every month. Said work had to be completed on or before 31.08.2001. Payment schedule noted that it was linked with the percentage of completion of work. It means that as and when particular percentage of work was completed by plaintiff in terms of aforesaid schedule, then defendant had to make payment of the contract work order proportionately. Time was therefore essence of the contract.
21. Further, aforesaid agreement as such was not accompanied with any site plan of the proposed construction. The agreement as such noted that payment shall be made to plaintiff subject to completion of work and certification upto that day. Now, question arises as to who had to certify the completion of work and in presence of whom ? Question also arises as to what all contents have to be mentioned in the said certificate. Agreement in question is silent with regard to said aspects. The said agreement as such left various loose ends which did not make it a well thoughtful agreement. Once, terms and conditions of the agreement in question were vague, case of litigating parties in question also M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 39/72 became vague. This conclusion did not make help the cause of any litigating parties in question.
22. Moving further, plaintiff in order to prove its case based on preponderance of probabilities, had examined PW- Mayank Jain, who was one of the partner of the plaintiff firm. He placed on record certified copy of certification of registration of plaintiff firm in Form-B Ex.PW1/1 and details of the partners of plaintiff firm Ex.PW1/2, which noted his name. Therefore, he was an authorized person who could have deposed on behalf of plaintiff firm.
23. In his affidavit, Ex.PW1/A, PW Mayank Jain simply reiterated the contents of the plaint. He did not throw any light on the aforesaid vague terms and conditions of agreement in question for removing them which did not probablize his case through his affidavit Ex.PW1/A.
24. In his cross-examination, he deposed that he was into construction activities since 1994 and had completed approximately 15 projects till the day he had come for deposing in this case. He also deposed that those projects were having approximate value of Rupees Six Crore in total. In the wake of said deposition, it is clear that he had ample experience in the field of construction. The project he had completed included the project of IDP Company Ltd., Routes Cooling Systems, Kortek Electronic Ltd. and Barroc Engineering Pvt. Ltd. etc. If that is so, then it was M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 40/72 natural and obvious that he should have known the fact that projects like the one involved in this matter at times are funded by the financial institutions which have their own norms for releasing the amount in several installments on completion of various stages. Contrary to that he deposed that he was not aware about such fact. His want of knowledge regarding the said fact as such make his testimony untrustworthy.
25. Moving further, PW Mayank Jain deposed that in this case area according to the approved plan was approximately more than 22000 sq. ft. That deposition was contrary to the agreement Ex.P-2 wherein, it was noted that said area was 20000 sq. ft. approximately. When he was confronted with the said fact mentioned in agreement Ex.P-2, he deposed evasively by deposing that he could answer the said aspect after seeing the work order. It only indicated that he lacked knowledge with regard to relevant facts, which did not make his testimony trustworthy.
26. PW Mayank Jain further in his cross-examination deposed that, that work as per agreement Ex.P-2 had to be completed as per the payment condition. Now, that deposition was contrary to the agreement Ex.P-2 as payment by defendant was based on completion of work as noted above. Therefore, this witness did not depose uniformly in terms of the document he had relied. It did not make him a trustworthy witness.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 41/7227.PW Mayank Jain in his cross-examination was ignorant about facts viz., that material for Rs. 224961/- was supplied through Jai Durga Steel, that cement worth Rs. 84700/-was supplied through M/s. Neer Shri Cement on 09.06.2001, that plaintiff had deducted the cost of material from the bill on the date of preparation of the bill as per the agreed rates mentioned in work order, that cost of Rs. 309661/- deducted by plaintiff in running bills was as per agreed rates of material given in the work order, whether material worth Rs. 86840/- through Jai Durga Steel was supplied to plaintiff on 20.06.2001, whether material worth Rs. 137336/- was supplied to plaintiff on 23.06.2001 by Jai Durga Steel and whether A.K. Sanghi was present on 01.08.2001 for reporting the extent of construction done by plaintiff at site in question. Those facts were relevant and lacking knowledge regarding them did not probablilze the case of plaintiff.
28.Moving further, PW Mayank Jain admitted in his cross-
examination that plaintiff raised first bill of Rs. 5,00,000/- on lump sum basis as the cost of work was not clear and it was approximate. The said explanation as such on his part only probablized the vagueness of agreement Ex P2. The said vagueness as such did not probablize the case of plaintiff.
29.PW Mayank Jain repeatedly deposed in his cross-examination that plaintiff had raised RA Bills i.e. Ex.P-3, Ex.PW1/8, Ex.PW1/9, Ex.P-14, Ex.P-17, Ex.P-21, Ex.PW1/21, Ex.PW1/22, Ex.PW1/25, M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 42/72 Ex.PW1/30, Ex.PW1/40 and Ex.P-33 as per the terms of work order Ex.P-2. Whenever question relating to said bills were put to him, he replied that execution and sending of said bill is not disputed, but contents of the bills were disputed by defendant. Said deposition did not probablize the case of plaintiff. Reasons being that such reply was evasive in nature and plaintiff did not stick to the terms and conditions of the agreement Ex.P-2. As such, Ex.P-3 was the first RA Bill raised by plaintiff on account of advance payment on agreement/ LOI. The said bill was for an amount of Rs. 5,00,000/-. Now, agreement Ex.P-2 noted that total contract amount was approximately Rs. 49,00,000/-. 10% of the said amount did not come out to Rs. 5,00,000/-. It comes out to Rs. 490000/-. So, that bill was on the face of it wrongly raised by plaintiff. The explanation that it was raised on lump sum basis as such was never justified by PW1. No terms and conditions of agreement Ex.P-2, gave liberty to plaintiff to raise said bill for such amount.
30.Moving further, second RA Bill- Ex.PW1/8 noted that it was raised by plaintiff on account of 10% of total area 2084.89 sq. mtr. Or 22433.42 sq. ft. @ Rs. 245/- Plus 10% of 50% area 11216.71 sq. ft. @ Rs. 245/-, from which the cost of the material used by plaintiff, was reduced. Now, I failed to understand as to how and on what basis, plaintiff had raised the said bill by completing 10% of total area and 10% of 50% area, as noted above. The amount mentioned against the said percentage of work done by plaintiff, M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 43/72 as such did not get any justification from the agreement Ex.P-2. The schedule for payment of the amount was on different tangent line in comparison to the one mentioned in second RA Bill Ex.PW1/8. PW1 as such never justified and explained as to how said amounts based on the percentage of total area were calculated by plaintiff. Similarly, this witness failed to justify the amounts proportionate to the percentage of work done in rest of the RA Bills. His answers with regard to the said aspects were basically evasive and were without any reasoning. Therefore, this witness did not probablize the fact that plaintiff had the right to raise those RA Bills in the manner it had done in this case.
31.Coupled with the same, I find that area of construction at site in question in RA Bills Ex.PW1/8 and Ex.PW1/9 was referred as 22433.42 sq. ft. The said area became 22283.10 sq. ft. in RA Bills Ex.PW1/14, Ex.P-17, Ex.P-21 and Ex.PW1/21. Further, the said area became 20278.10 sq. ft. in RA Bills Ex.PW1/25 and Ex.PW1/30. Later on, in RA Bills Ex.PW1/40 and Ex.P-33, said area became 22031.541 sq. ft. So, plaintiff did not uniformly stick to one stand with regard to the exact area at site in question where it was making construction. Since, plaintiff was not uniformly referring to the area at site in question, therefore, all the said bills were based on different calculations regarding the extent of the area whose construction cost plaintiff was claiming against defendant. There was no explanation whatsoever with regard to the said construction area of construction site in question in the M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 44/72 testimony of PW Mayank Jain. The said non explanation did not make the testimony of PW Mayank Jain trustworthy. It also did not prove the fact that said bills were true and were properly raised by plaintiff.
32.In addition to aforesaid reasoning, I find that sixth RA Bill Ex.P-
21, there was correction in the month of the date i.e. 29.10.2001 against the column of "total amount received till date". The said correction was never explained by PW1 in his testimony. It created doubt in my mind regarding the veracity of said bill which did not help the cause of plaintiff.
33.Another important aspect which I noted was that there was correction in eight RA Bills Ex.PW1/22. It was never explained by PW1 as to who had made said correction which created doubt in my mind regarding veracity of said document. Similarly, in ninth RA Bill Ex.PW1/25, there was cutting. It was never explained by plaintiff. Lastly, I found that the column of "total amount received till date" did not mention the exact date in RA Bill Ex.PW1/30 and Ex.PW1/40. Lack of details of said date did not make those bills trustworthy. All in all, PW1 failed to explain the said cuttings, improvements and lack of details in the said bills. Therefore, I discarded those bills being untrustworthy and inconsequential in nature.
34.PW Mayank Jain in his cross-examination admitted that he had started construction at site in question without sanctioned site M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 45/72 plan. He corrected himself by deposing that he had no idea. The said manner in which he had deposed the said fact indicated that he wanted to hide true facts from the court. It did not make his testimony believable.
35.PW Mayank Jain falsely deposed in his cross-examination that provision of running bills was mentioned in agreement Ex.P-2 at point no. 4 and 5. Same was not the true situation. Therefore, he deposed false facts before the court which further made his testimony false.
36.PW Mayank Jain instead of going through the document and deposing facts in tune with the contents of those documents which included agreement Ex.P-2 and the RA Bills raised by plaintiff, simply refuted the facts which were put to him by defendant based on contents of those documents. To highlight the same, I mention here that PW Mayank Jain refuted the suggestion that first page of construction plinth bottom being level had to be completed. Same was very much mentioned in the schedule annexed with agreement Ex.P-2. PW1 simply denied it. Said denial was wrong and evasive in nature which did not probablize his testimony to be trustworthy. This witness stuck to his version that RA Bills raised by plaintiff were in tune with the terms and conditions mentioned in agreement Ex.P-2. Said reference was wrong as said agreement nowhere noted that said bills could be raised in said fashion. Therefore, his testimony indicated that he was either ignorant or M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 46/72 was stubborn with regard to his false stands concerning relevant facts of the case. It did not make his testimony trustworthy.
37. PW Mayank Jain was asked as to what plaintiff meant by "part area" referred in the bills raised by plaintiff. This witness did not give any proper and reasonable answers explaining the said expression. He simply deposed that "the bill is raised on the work site on the date as per the date of the bill". The said answer as such did not answer the question regarding clarity "part area".
38.PW Mayank Jain stuck to his version that the bills raised by plaintiff were correct and were in terms of agreement Ex.P-2. Now, how those bills were correct and how agreement Ex.P-2 granted permission to plaintiff to raise those bills in said manner, were never answered by PW1. Since, plaintiff had rested its claim based on final bill Ex.P-33, so, I am mentioning the contents of said bill below in order to highlight the fact that it was not raised by plaintiff in terms of the schedule 'Annexure-1' pertaining to "payment schedule/ completion of work".
XIIth BILL Date:- 24.04.2003 To, The Managing Director M/s Banaras Manufacturers Pvt. Ltd.
205, Vishwa Sadan, 9, Distt. Centre, Janak Puri, Delhi-110058.
Sub:- Construction of factory at Plot No. 36, Sector-31, Kasna, Greater Noida Ref:- Work Order dated 12.05.2001.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 47/7210% of Total Area 2047.541 sq. M or 22031.541 sft@ Rs.245(at LOI) =539772.75 10% of Total Area 22031.54sft. @Rs.245 (payment at plinth Beam Bottom Level) =539772.75 15% of 99% area i.e. 21811.225sft @Rs245 (payment at Tie Beam Bottom Level) =801562.51 15% of 99% area i.e. 21811.225sft @Rs245 (payment Bottom cord Level) =801562.51 15% of 100% area i.e. 22.31.541sft @Rs245 (payment at Erection of Trusses) =809659.12 10% of 100% area i.e. 22031.541 @Rs.245(payment of roofing) =539772.75 10% of 70% Area i.e. 15422.078 @Rs.245(payment of plaster & door windows of B/W)=377840.91 5% of 10% Area is 15422.078 @Rs.245 (payment at flooring) = 26988.64 5% of 70% area is 15422.078 @Rs.245 (payment at white washing & painting) =188920.45 5% of 30% Area i.e.6609.462 @ Rs.245 (payment at finishing) =80965.91 RECOVERY Tor Steel Consumed 35.380 MT@ Rs.15,000.00` (-) 530700.00 Cement Consumed 2245 Bags@ Rs.140.00 (-) 314300.00 Structural Steel consumed 35.90MT @ Rs.17500.00 (-) 628250.00 Bricks Consumed 36,000 No. @Rs.1225 (-) 44100.00 A.C. Sheets & Ridges consumed (-)15400.00 Total Amount 3034768.10 Extra Items-
Supplying for extra weight of str. Steel (+) 30000.00
Soil filling 2832.18 CUM@ 115 (+) 325701.00
P/F 450 mm vide chajja at gable beam(L.S) (+) 65250.00
Fixing of Grill & Gate (+)22500.00
G. Total 3478219.38
Say 3478219.00
Total amount received till date ()2250000.00
(Rupees Twelve Lacs Twenty Eight Thousand Two Hundred Nineteen Only) Thanking you Yours faithfully, M/s Inplan
39. PW Mayank Jain deposed that all the activities done by plaintiff at site in question for completion of work were done simultaneously as per norms of building construction. Said deposition as such indicated that plaintiff simply disregarded the terms of the agreement Ex.P-2 and the annexures accompanied with the said agreement pertaining to the manner in which phase- wise work of construction in question had to be completed. In M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 48/72 other words, plaintiff simply did work based on its whims without following the schedule in which said work had to be done in terms of Ex.P-2. It did not make the case of plaintiff probable.
40. PW Mayank Jain failed to answer as to how the advance payment of Rs. 496813/- in 10th RA Bill Ex.PW1/30 was raised to Rs. 539772/- in 12th RA Bills Ex.P-33. He failed to answer as to how plaintiff could have asked for payment on account of works which included flooring, white-washing, painting, finishing, extra items of soil filling and structures steel simultaneously. Coupled with the same, PW Mayank Jain was not sure as to how the area of site in question was measured. He deposed that said area was measured by staff of plaintiff and by him. The date and time when it was so measured and the persons before whom it was measured were the relevant facts which he should have deposed. Those details were not stated by him in his testimony which made the said explanation vague and improbable.
41.Plaintiff examined PW Sh. Mayank Jain who was one of the partner of plaintiff firm. He tendered in evidence his affidavit Ex PW1/A. In the said affidavit this witness deposed facts in tune with the contents of the plaint. Amongst said facts, I find that certain facts must be appreciated here for knowing the veracity of testimony of this witness. They are appreciated by me in my subsequent paragraphs.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 49/7242.PW Mayank Jain deposed in concluding lines of para 13 of the affidavit Ex PW1/A that defendant did not reply the letter of plaintiff dated 27.07.2001 Ex P-15 in writing but had verbally intimated that work is to be executed as per revised drawings involving extra items and additional quantity. This witness did not specify the details of said verbal communication. He did not mention as to who was the specific person of defendant concern who had told plaintiff about the same. The date, time and place of said communication was also not mentioned by PW Mayank Jain therein. Therefore, said claims of PW Mayank Jain were vague in nature which did not probablise the case of plaintiff.
43.Moving further, PW Mayank Jain in para 14 of his affidavit Ex PW1/A deposed that in view of persistent faults, failures and breaches of contract committed by defendant, no time period beyond 30.08.2001 was extended and mandate was that time was as essence of the contract. Those allegations were again vague in nature. PW Mayank Jain did not specify as to which faults, failures and breaches defendant had committed which led to expiry of time period for execution of agreement Ex P-2. It made his said claims vague and improbable which did not help the cause of plaintiff.
44.Moving further, PW Mayank Jain in para 17 of his affidavit Ex PW1/A deposed that defendant for reasons best known to them as an after thought after four months came forward with baseless M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 50/72 allegation vide its letter dated 05.11.2001 certifying that covered area was not 22283.10 sq. ft. as calculated by plaintiff based on drawings, design and revised decision but alleged the same to be only 19357 sq. ft. which was less than the approximate area given in letter dated 12.05.2001. As such said claim of PW Mayank Jain did not help the cause of plaintiff as plaintiff did not pray for the relief of declaration of said letter dated 05.11.2001 being declared as null and void. In the wake of absence of said relief, aforesaid claim of plaintiff remained inconsequential.
45.Moving further, in para 17 of his affidavit Ex PW1/A, PW Mayank Jain deposed that defendant had reduced the amount of sixth R.A. Bill Rs.1099673/- to Rs.385561/- against which part payment of Rs.2,50,000/- was made by defendant. He deposed that said amount was objected by plaintiff vide letter dated 09.11.2001 Ex PW1/13 but later on, confirmed that the said amount was received by plaintiff vide receipt dated 29.11.2001 Ex PW1/15. So, plaintiff on one hand had raised objection with regard to the payment of Rs.2,50,000/- but on other hand, received the same without any protest. It only indicated that plaintiff impliedly admitted the version of defendant regarding the reduction of 6th R.A. Bill from Rs.1099673/- to Rs.385561/-. This conclusion did not help the cause of plaintiff. More so where, plaintiff did not pray that letter dated 05.11.2001 be declared and null and void.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 51/7246.Further, in para 21 of his affidavit PW Mayank Jain deposed that a meeting was held between the parties on 30.03.2002 wherein it was made clear that for completion of shed no.1, minimum amount of Rs.10 lacs were required and said work could be done in 60 days if the withheld payments were released. PW1 failed to explain as to whether said agreement rescinded the original agreement P-2 or was dictated as an off shoot of the said contract. The details of said meeting of 30.03.2002 was never mentioned in the said affidavit which made the case of plaintiff improbable.
47.PW Mayank Jain deposed in para 22 of his affidavit that Ex PW1/A that complete value of work including EIS/SIS was approximately for Rs.65 lacs and could not be confined to Rs.49 lacs as per work order dated 12.05.2001 because of changed drawings, decisions, items and requirements and consequent increased area and extra/substituted items. The said claim as such went contrary to his pleadings and evidence wherein time and again plaintiff had claimed that defendant had to pay the due amounts as mentioned in 12th R.A. Bill Ex P-33 pursuant to agreement dated 12.05.2001 Ex P-2. Plaintiff through the testimony of Mayank Jain simply cannot take U turn from the one mentioned agreement dated 12.05.2001 by making aforesaid submissions in his affidavit Ex PW1/A. Those submissions, therefore, did not probablise the case of plaintiff. Even otherwise, those claims based on EIS/SIS were never part of original agreement Ex P-2.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 52/7248.PW Mayank Jain disputed the contents of letter dated 24.08.2008 written by defendant but did not pray for the relief of declaration that said letter be declared as null and void. In the absence of said relief, the dispute raised by plaintiff with regard to said letter became inconsequential. For the similar reason, dispute with regard to contents of letter dated 07.10.2002 written by defendant placed by plaintiff in para 22 of his affidavit did not probablise the case of plaintiff.
49.In para 25 of affidavit PW Mayank Jain deposed that covered area on actual measurements worked out to be 22031.541 sq. feet and it was jointly measured by the parties at the site. The said claim again was not explained by PW Mayank Jain by giving details of the persons who were present at the site representing both parties. It remained bald averment on the part of PW Mayank Jain which did not probablise the case of plaintiff.
50.Further in para 27 of his affidavit Ex PW1/A, PW Mayank Jain deposed that plaintiff released part payment of Rs.8.25 lacs in January, 2003. No documentary proof in support thereof was filed by him which made the said assertion bald in nature. Coupled with the same, in the same para he deposed that plaintiff had given letter dated 17.02.2003 Ex PW1/42 by hand to defendant. Again, said letter did not mention the receiving signature and stamp of defendant. Therefore, aforesaid claim of plaintiff was not proved M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 53/72 by plaintiff through the testimony of PW Mayank Jain.
51.Further, in para 30 of his affidavit, PW Mayank Jain deposed following facts:-
"That in the first week of November 2003, on 01.11.2003 the defendant asked the staff and chowkidars of the plaintiff to vacate the site and proposed to get the work executed by engaging another agency without making payment for the work done to the plaintiff, without recording the final measurements and without terminating the contract. Thus, the plaintiff was left with no alternative but to file a suit Ex P-41 & P-42 on 03.11.2003 in the Court of Civil Judge Senior Division Gautam Budhnagar, Noida for injunction and ad-interim relief against the defendant restraining the defendant from terminating the work order dated 12.05.2001 till it is completed by the plaintiff and also for appointment of Local commissioner to assess and report on the extent of the work done by the plaintiff after visiting site."
52. Aforesaid paragraph did not specify as to which particular person/official of defendant had asked which specific staff and chowkidar of plaintiff to vacate the site and had proposed that work shall be executed by another agency. No evidence was led by plaintiff in support of said claim. Therefore, said claims remained bald claims which did not probablise the case of plaintiff.
53.Further, in para 34 of his affidavit Ex PW1/A, PW Mayank Jain deposed about the details based on which he had prayed for recovery of amount from defendant. Those details included loss of interest, loss of profit, cost, price of material, T & P taken over and loss on account of addition expenses of staff, over head and loss of hire charges of T & P due of prolongation of work beyond 31.08.2001. The said basis of raising claims was not mentioned in M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 54/72 agreement Ex P-2. Therefore, plaintiff could not have claimed the said amounts. Such claim did not make the testimony of PW Mayank Jain probable.
54.The net result is that affidavit of PW Mayank Jain did not probablise the case of plaintiff.
55. Further, PW Mayank Jain had claimed that plaintiff was not acquainted with the fact that defendant had taken loan from UPFC i.e Uttar Pradesh Financial Corporation. The said claim was improbable for the reason that the condition no.6 mentioned in agreement Ex P-2 noted that plaintiff had to complete maximum work before 28.06.2001 as defendant had to show the structure to Greater Noida Authority on 29.06.2001. The said "Greater Noida Authority" in the circumstances of this case can only be Uttar Pradesh Financial Corporation. Plaintiff never gave any counter reasoning to counter aforesaid conclusion during course of trial. When PW Mayank Jain was cross-examined by defendant, he was specifically asked that defendant had taken loan from UPFC, and in response to it he did not deny the same by deposing that he was not aware about the said fact. Infact PW Mayank Jain deposed that he was not aware as to whether big projects were funded by financial institutions. The said evasive reply on his part did not probablise his testimony. This conclusion as such did not probablise the case of plaintiff.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 55/7256.Moving further, PW Mayank Jain was asked questions with regard to basis on which R.A. Bills were raised by plaintiffs. He reasoned the same by deposing that those R.A. Bills were raised by plaintiff in terms of conditions 4 & 5 of agreement Ex P-2. The said explanation on his part was not correct as the said conditions of agreement Ex P-2 did not allow plaintiff to raise R.A. Bills in the manner plaintiff had raised. Annexure-I accompanied with agreement Ex P-2 categorically noted the proportionate percentage of work contract amount to be released by defendant in favour of plaintiff, subject to completion of the specific structure. The said annexure as such nowhere noted that those proportionate amounts had to be released when certain percentage of the structure was completed by plaintiff. The R.A. Bills raised by plaintiff noted that plaintiff had claimed that certain percentage of the structure viz Plinth Beam Bottom Level, Tie Beam Bottom Level, Bottom Cord Level, Erection of Trusses, Roofing, Plastering & Door/ Windows, Flooring, White Washing/Painting, Finishing were raised by plaintiff. The said manner of raising R.A. Bills was therefore, contrary to the agreement Ex P-2. It did not probablise the case of plaintiff.
57.PW Mayank Jain as such was obstinate while deposing facts pertaining to the basis on which R.A. Bills were raised. He never explained as to how terms and conditions of agreement Ex P-1 could be interpreted in a manner which could have justified the M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 56/72 raising of R.A. Bills by plaintiff. He also simply denied the facts mentioned in annexure-I accompanying Ex P-2 strangely. When he was asked to confirm that first stage of construction was at plinth bottom beam level, he simply denied it. His said denial as such was contrary to the agreement Ex P-2. Coupled with the same, his intention was drawn towards fourth R.A. Bill Ex P-14 and he was asked whether in the wake of said bills, work upto tie beam level was not completed? PW Mayank Jain denied the same. The said denial was wrong as said bill categorically noted that 95% of area at tie beam level was completed. In other words complete tie beam level area was not completed as per the said bill and therefore, it was not raised by plaintiff in terms of annexure-I accompanying Ex P-2. Further, while referring to the fourth R.A. Bill Ex P-14, PW1 was asked whether material worth Rs.590250/- was supplied to plaintiff by defendant and whether there was any shortage of material which could have affected the progress of work as mentioned in the para 12 of affidavit of PW Mayank Jain. Again, PW Mayank Jain denied the same. The said denial was not accompanied with any explanation or reasoning. The said denial was therefore evasive in nature. It was arbitrary denial which did not probablise the case of plaintiff.
58.The measurement of the area at site in question where construction had to be done by plaintiff also was a bone of contention in this case. The agreement Ex P-2 noted the said area to be 20,000 sq. ft.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 57/72approximately. There was no proof brought on record by plaintiff suggesting that area was jointly measured and verified by litigating parties in question in a particular manner. Infact a uniform and specific area at site in question which had to be constructed by plaintiff was never proved by plaintiff.
59. Moving further, agreement Ex P-2 categorically noted the condition that plaintiff had to arrange atleast three quotations building material supplier for the material required for construction. The said condition was never complied with by plaintiff. It did not probablise the case of plaintiff. Further, agreement Ex P-2 categorically noted that complete work at site in question had to be completed by plaintiff maximum by 31.08.2001. Admittedly, that date of completion of the work expired and construction work was not completed by plaintiff. Once that date expired, said agreement Ex P-2 came to an end. More so where, no subsequent written agreement was executed by the parties in writing or orally specifying the specific terms and conditions. In such circumstances, reference to agreement Ex P-2 beyond 31.08.2001 by plaintiff for redressal of his grievances, was illegal.
60.After the expiry of the time period for completion of work in terms of Ex P-2 i.e. on 31.08.2001, the arrangement between plaintiff and defendant appeared to be on day to day basis. PW Mayank Jain admitted the fact that plaintiff used to give credit to M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 58/72 defendant for supply made as per recoveries given in running bills as and when consumed and not on receipt of material. The said admission indicated that the terms and conditions of work contract between the parties had changed substantially and beyond the scope of agreement Ex P-2. Viewed from that perspective also, reference to agreement Ex P-2 by plaintiff for redressal of his grievances was not proper.
61.PW Mayank Jain relied upon document Ex PW1/7 and deposed that vide said document, defendant was apprised about the change in specifications and drawings of type of construction at site in question. Defendant denied the said document. A bare perusal of the said document revealed that it was undated. It was addressed to Sh. Rahul but designation of said person was not mentioned therein. Coupled with the same, I find that it was not the original document as the signatures of the person who had written was not mentioned in it. The said document noted the expression "To & SD-" with black ink pen but the name "Sh. R. Rahul" was mentioned in blue pen. I failed to understand as to why the name of Sh. R. Rahul was mentioned in blue pen while other writings were made with black sketch pen. PW Mayank Jain failed to explain the same, therefore, I conclude that Ex PW1/7 was not a document executed ordinary course of business. There remained a possibility of same being a forged document. It did not help the cause of plaintiff.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 59/7262.PW Mayank Jain relied upon letter Ex P-11 dated 12.07.2001, letter Ex P-15 dated 27.08.2001, letter Ex PW1/13 dated 09.11.2001, letter Ex PW1/23 dated 03.01.2002, letter Ex PW1/24 dated 07.02.2002 and letter Ex PW1/32 dated 19.08.2002. In all those letters plaintiff had apprised defendant that due to failure on the part of defendant to make necessary payments, plaintiff was finding it difficult to work. I failed to understand as to why plaintiff continued to work further when it was not receiving the requisite payments from defendant and continued to sustain alleged losses. Once as per plaintiff, defendant had not made payments as per the agreement Ex P-2, the said agreement came to an end as defendant allegedly breached the terms and conditions of said agreement. Plaintiff got the right to move the court once defendant breached the terms and conditions of said agreement. The inaction on the part of plaintiff on that account did not make plaintiff a bonafide and reasonable person. Plaintiff never justified the said conduct through the testimony of PW1. It improbablised its case.
63.PW Mayank Jain relied upon letter Ex P-12 dated 16.07.2001 vide which it was informed by plaintiff to defendant that there was difference in the levels/dimensions in the architectural drawing and structural drawings. The said differences were never reconciled as per any of the documents relied by PW Mayank Jain.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 60/72Therefore, it did not probablise the case of plaintiff.
64.Similarly, necessary confirmation with regard to the area where construction had to be made by plaintiff was not given by defendant, pursuant to letter dated 27.08.2001 Ex P-15. Absence of clarification in this regard also did not probablise the case of plaintiff.
65.PW Mayank Jain relied upon letter Ex PW1/12 dated 11.10.2001.
In the said letter, plaintiff had written to defendant that plaintiff did not understand as to why statement of account of defendant company was sent to plaintiff. The said response of plaintiff company was evasive and unreasonable. Once defendant company had sent it statement of account then ordinarily plaintiff should have checked and verified the details of payments made by defendant to plaintiff by verifying it with its own record/statement of account. Plaintiff did not do so and simply avoided the statement of account of defendant. The said conduct of plaintiff was unreasonable and arbitrary. It did not help the cause of plaintiff.
66.PW Mayank Jain relied upon letter Ex PW1/13 dated 09.11.2001 vide which plaintiff notified defendant that it had received Rs.2,50,000/- against the part payment of 6th running bill which was sent by plaintiff. Receiving of Rs.2,50,000/- from defendant as such indicated that plaintiff accepted the calculations of M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 61/72 defendant. More so where, it was not the stand of defendant that it was receiving the amount under protest. It also indicated that letter dated 05.11.2001 written by defendant was correct. Further, letter Ex PW1/13 noted that plaintiff was finding it difficult to work with defendant. It indicated that plaintiff did not want to move further with the terms and conditions agreed between the parties. Once that intention was shown by plaintiff, the agreement Ex P-2 as such came to an end.
67.PW Mayank Jain relied upon letter Ex PW1/27 dated 12.06.2002.
Vide said letter plaintiff had informed to defendant that value of work as given in the letter of award was approximate and estimated and not as per actual work done at site. The said claim of plaintiff as such indicated that parties never agreed upon specific extent of work to be done by plaintiff and specific amount which defendant had to be paid to plaintiff. If that so then agreement Ex P-2 was an agreement which was bad in the eyes of law as it was vague in nature. In coming to aforesaid conclusion I am guided by the following contents of said letter.
"There have been some modifications in the work suggested by the architect of your consultant at you instance by issuing certain drawings and decisions. Some extra items are yet to be decided and ordered by you as per requirement of the site for completion of the project. Further the estimate of work as awarded did not included in its ambit the chhajjas and canopy. Thus total value of the work required to be executed as per instructions issued till date would be about Rs.55 lacs and not Rs.49 lacs only alleged."
68.Plaintiff relied upon document Ex PW1/31 which noted the payment which had to be made to different concerns by plaintiff M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 62/72 for the work done at site in question. The details of said concerns are mentioned below:-
Tayal Rs.75,000/-
Asher Rs.75,000/-
Aibeer Rs.63,000/-
S. K. Builder Rs.55,000/-
S. P.G. Builder Rs.25,000/-
Jain Brothers Rs.85,000/-
Mr. Sunil Awana Rs.35,000/-
Swastik Builder Rs.45,000/-
Sanjeev Gupta Rs.3,25,000/-
Total Rs. 783000/-
69. The details of said concerns and details of work they had done was not mentioned. Therefore, the aforesaid details were vague in nature. Therefore, I discarded the same.
70.PW1 relied upon the proceedings of the concerned Court at UP in civil suit filed on 03.11.2003 Ex P-43, P-44 and Ex P-45. Those proceedings included the report of local commissioner Ex PW1/44. The said report noted that the concerned local commissioner had visited the site in question and had found the area of the site where work in question had to be done by plaintiff to be 22031.41 sq. ft. Now that area is contrary to the pleadings and evidence of plaintiff. Therefore, reference to the report of said local commissioner did not probablise the case of plaintiff. More so where, said suit before the concerned Court was dismissed as withdrawn by plaintiff.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 63/7271.Plaintiff through testimony of PW Mayank Jain claimed that apart from the work as noted in agreement Ex P-2, plaintiff had done extra work to the tune of Rs.22,500/-, Rs.6,10,000/- and Rs. One lac as noted in letter Ex P-19 dated 09.11.2001, Ex P-23 dated 11.12.2001 and Ex PW1/26 dated 08.04.2002 respectively. Plaintiff never clarified as to how the cost of said work was reconciled by plaintiff with the cost amount of work done pursuant to agreement Ex P-2. Lack of details in that regard did not probablise the case of the plaintiff.
72.PW Mayank Jain relied upon letter dated 09.11.2001 Ex PW1/13.
The said letter written by plaintiff addressing defendant. In the said letter plaintiff claimed that length and breadth of site of construction can be jointly measured at any time. The said claim indicated that area where construction work had to be done by plaintiff, was not specifically measured by litigating parties in question till 09.11.2001. It was strange that despite absence of the said proper measurement, plaintiff opted to continue with the construction work. So, Plaintiff did not act on a precise measured area for constructing at site in question. In such circumstances, vagueness regarding the cost of work of construction loomed large which did not probablise the case of plaintiff.
73.Further in letter Ex PW1/13 plaintiff observed "it is difficult to work in sequence that only roofing to be completed first then start M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 64/72 other work. To complete the work it is required to take up all jobs simultaneously and for that payment to bills is must". The said claim of plaintiff as such contrary to the terms and conditions of agreement Ex P-2. So, by making said claims, plaintiff itself breached terms and conditions of agreement Ex P-2. In a way plaintiff had rescinded original agreement and had proposed new terms and conditions to defendant by making said claims. Defendant never accepted those claims and therefore, plaintiff itself had to blame for not honouring the agreement Ex P-2.
74.PW Mayank Jain further relied upon letter dated 15.12.2001 Ex PW1/22. The said letter noted that "now the bills has been raised for the area 20278.10 sq. ft excluding chajja tie beam level as per your requirement". The manner in which said bill was raised, was vague in nature. It was not in consonance with the terms and conditions of agreement Ex P-2. Further, area of the construction was not similar to the one, mentioned in the pleadings of plaintiff. Therefore, plaintiff created confusion by making said claims in letter Ex PW1/22 which did not probablise its case.
75.Plaintiff relied upon a handwritten document Ex PW1/22, which noted the area statement. PW Mayank Jain never explained as to who wrote the said statement. The said statement was not signed by anybody. Therefore, it was not proved as per law. Similarly, hand written Ex PW1/34, again was not signed by anybody. PW Mayank Jain did not explain as to who had written the same.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 65/72Therefore, it was not proved by PW Mayank Jain.
76.This brings to the bill Ex P-33 dated 24.04.2003. In the said bill plaintiff had claimed that it had completed certain percentage of the total area of work. It also noted that plaintiff had completed certain percentage of Plinth Beam Bottom Level, Tie Beam Bottom Level, Bottom Cord Level, Erection of Trusses, Roofing, Plastering & Door/ Windows, Flooring, White Washing/Painting, and Finishing. The said manner of raising the bill was not in consonance with the annexure-I accompanying agreement Ex P-2. Coupled with the same, said bill noted that plaintiff had received Rs.22,50,000/- and an amount of Rs.1228219/- was due. PW1 did not file any bank statement of plaintiff showing that said amount was received by plaintiff and so much amount was due against defendant. Therefore, at the end of the day, said bill remained a self-serving document not supported by any bank statement of plaintiff. Once defendant had raised claim that nothing was due against plaintiff, it should have put plaintiff on guard. In other words, plaintiff should have placed on record its bank account statement detailing out the amount which it had received from the defendant and the amount which was due against defendant. Plaintiff did not file the same and therefore, defendant was not liable to pay any amount pursuant to the bill Ex P-33 to plaintiff.
77. Moving further, plaintiff filed document Ex PW1/45 (colly). The said document noted the basic rates pertaining to the articles used M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 66/72 for construction and the labour cost. The said document as such did not prove the fact that plaintiff had paid such amounts for construction of material and for meeting out the labour charges of the labour. It was not accompanied with bank account statement of plaintiff. It was a general document which did not probablise the case of plaintiff. I discarded it accordingly.
78. Plaintiff relied upon bills Ex PW1/46 (colly). PW Mayank Jain as such did not explain as to who had prepared those bills. It was not the case of PW Mayank Jain the he had signed the said bills or he had seen the person signing the said bills. Coupled with the same, those bills noted that certain amounts mentioned therein were paid to the persons mentioned therein. PW Mayank Jain did not file bank statement of plaintiff, which could have shown that those amounts were debited from the accounts of plaintiff and credited in the accounts of persons mentioned therein. Therefore, those bills did not probablise the case of plaintiff.
79.PW Mayank Jain relied upon bill Ex PW1/49 (colly). Those bills were issued by Jai Durga Steel, Swastik Builders, Tulika Engineering Pvt. Ltd, Adarsh Harware, JIT Engineers, Bharat Mill Store, National Electricals, Shyam Ji Oil Traders, Deep Traders, Prashar Transport Company, Vishal Enterprises, Ajit Engineers, Pyare Lal Anil Kumar Kabadi, Hindustran Mill Store, Sushil Kumar Sanjay Kumar and Singh Engineering Works. Those bills M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 67/72 could have been proved by said entities who had issued the same. Plaintiff did not examine said entities. Coupled with the same, PW Mayank Jain did not place on record the bank statement of plaintiff showing that those amounts were debited from the accounts of plaintiff and credited in the accounts of the said entities. Therefore, those bills did not probablise the case of plaintiff.
80.Lastly, PW Mayank Jain relied upon ledger account Ex PW1/47 (colly). The said ledger account did not mention that the amount of Rs. 1228219/- due against defendant in the accounts of plaintiff. Therefore, it was of no consequence for the cause of plaintiff.
81.Lastly, plaintiff relied upon balance sheet Ex PW1/48 (colly). The said balance sheet as such did not mention the amount of Rs.1228219/- due against defendant. Therefore, that balance sheet did not probablise the case of plaintiff.
82.The net result is that plaintiff through testimonies of its witness failed to prove that agreement Ex P-2 was not a vague agreement, that plaintiff stuck to the terms and conditions of said agreement, that plaintiff had sent the amounts mentioned in the bills placed on record for construction at site in question, that amount of Rs. 1228219/- was due against defendant and that plaintiff had not breached the contract in question. Therefore, plaintiff failed to prove the aforesaid issues based on the testimony of PW Mayank M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 68/72 Jain.
83. So far as defendant is concerned, defendant examined DW Sh.
Raj Kumar Gupta. This witness was not put any specific question regarding the basis of bill Ex P-33 by plaintiff. This witness refuted the suggestion put to him by plaintiff based on case of plaintiff. He was not put any specific question regarding the specific area of construction site in question, the amount paid by defendant to plaintiff out of Rs.49 lacs pursuant to agreement Ex P-2 and the amount which was due against defendant. He was questioned about broad parameters regarding the facts of case viz. structural drawings of construction site, area of construction site, material used and consumed by plaintiff, appointment of local commissioner for mentioning the area at construction site and likewise. Those aspects as such did not probablise the case of plaintiff and did not remove the aforesaid shortcomings which had arisen in the case of plaintiff. Therefore, testimony of PW Mayank Jain did not help the case of plaintiff.
84. Defendant also examined Jagbir Singh. This witness tendered in evidence his affidavit Ex A-2. In the said affidavit, he deposed that he was proprietor of M/s Shiva Construction, Rohini, New Delhi and was a building contractor. He claimed that defendant had engaged him for completing the construction work at factory i.e. Plot no. 36, Sector-41, Greater Noida, UP which he completed after he was awarded the work contract in November, 2003.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 69/72Consequently, after completing work in June 2004 he raised bill Ex DW1/13 against defendant. Besides that certain minor deficiencies were completed by him in and around September, 2004.
85. The said affidavit of Jagbir Singh was vague in nature. It did not specify the exact extent of incomplete work for which he was awarded contract in November, 2003 by counter claimant. He did not explain as to what deficiencies he had completed in September, 2004. It was not his claim that bill amount of bill Ex DW1/13 was paid to him by defendant. Coupled with the same, he did not specify as to what was the exact position when he took possession of site in question for completing the incomplete work and what all expenses he bore for completing the said work. Therefore, his affidavit did not probablise the case of defendant.
86. In his cross examination, he admitted that there was no written agreement with defendant. As per him there was an oral agreement based on itemwise rate. The terms and conditions of said agreement was not specified by him in his testimony. He did not specify the exact date when he was awarded work contract by defendant.
87. He deposed that he had given Rs.1.15 lacs in advance and rest of the payment was paid by counter claimant after completion of work. He did not file any documentary proof in support of the fact M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 70/72 that he had received Rs.1.15 lacs from defendant initially as advance and had received balance payment after completion of work. He deposed that he had completed external work for Rs.1220345/-. The said amount as such did not match the amount of Rs.2866608.75 mentioned in the bill Ex DW1/13. Apart from that I find that on the last page of bill Ex DW1/13 certain amounts were mentioned with blue pen. Sh. Jagbir Singh did not explain the significance of those amounts and the person who had written those amounts in the said bill. He did not claim that said bill was prepared by him only or under his instructions. He did not file documentary proof regarding the fact that his agency had spent different amounts under the headings of different items mentioned in the bill to concerned authority. Therefore, he failed to prove the fact he deposed in his affidavit based on preponderance of probabilities. His testimony remained vague and improbable. I discarded the said testimony accordingly.
88. In the wake of aforesaid appreciation and conclusion, I find that plaintiff did not stick to the terms and conditions mentioned in the agreement Ex P-2. Therefore, plaintiff is not entitled for any reliefs. Testimony of witness examined by plaintiff was neither trustworthy nor reliable. Therefore, aforesaid issues are decided against the plaintiff.
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 71/72RELIEF
89.Based on aforesaid appreciation and conclusion, the suit of the plaintiff stands dismissed.
90.No order as to cost.
91.Decree sheet be prepared accordingly.
Announced in the open Court [PRASHANT SHARMA]
Dated : 28.06.2021 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
M/s Inplan Vs Banaras Manufacturers Pvt. Ltd. Page No. 72/72