Delhi District Court
Mr. Shakti Bhushan vs Jss Academy Of Technical Education on 21 August, 2023
-1-
IN THE COURT OF SH. GURDEEP SINGH
DISTRICT JUDGE (COMMERCIAL COURT)
NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
IN THE MATTER OF:-
CNR NO. : DLNW01-002550-2019
CS(COMM.) NO. : 55/2019
1.MR. SHAKTI BHUSHAN PROPRIETOR OF M/S MATA BELL FIRE SYSTEMS R/O : WZ-1377, RANI BAGH NEW DELHI-110034 ...............PLAINTIFF VERSUS
1. JSS ACADEMY OF TECHNICAL EDUCATION AT : C-20/1, SECTOR-62 NOIDA, UTTAR PRADESH-201301 ..................DEFENDANT Date of Institution : 15-03-2019 Date of transfer to this court : 22-07-2020 Date of reserving order : 21-08-2023 Date of pronounced of order : 21-08-2023 JUDGMENT / 21-08-2023
1. Vide this judgment, I shall decide the present suit for recovery of Rs.16,05,249/- filed by plaintiff against defendant.
2. The facts as averred in the plaint are that plaintiff is proprietor of firm working under name and style of M/s Mata Bell Fire Systems dealing in the fire safety and other related works and attained great success in past few years. The defendant is one of the leading technical institutions having colleges in various cities duly affiliated by Dr. APJ CS (Comm.) No.: 55/2019 Page 1 of 17 -2- Abdul Kalam Technical University, U.P. Lucknow. Further, it is averred that plaintiff was assigned a contract by the defendant on 12-12-2013 for providing fire suppression works at girls hostel campus, JSS ATE, Noida for a total sum of Rs.17,30,475/- whereby he had deposited a sum of Rs.23,000/- as earnest money returnable after 6 months from the date of deposit. Further it is averred that as per the agreement signed between the parties, the defendant was supposed to release the advance payment amounting to Rs.4,32,618/- i.e. 25% of the contract value but the defendant made the advance payment of Rs.1,92,525/- only and on query, plaintiff was informed that institution is facing shortage of funds so the balance amount would be released soon. Thereafter the defendant released the sum of Rs.1,12,975/- and Rs.98,161/- on 27-09-2014 and 31-10-2014 respectively.
3. It is further averred that the plaintiff had initially commenced work from 04-04-2014 at the JSS Academy of Technical Education, Noida and had worked with utmost sincerity. It is further averred that on 01-7-2014, site engineer namely sh. J. S. Sareen requested the plaintiff for the additional work at the site and extra work as told by the site engineer includes core cutting work at the site and the plaintiff was requested to do the core cutting for 24 holes in the 8 storey building of the defendant. It is further averred that as per the discussion held jointly the said work was to be outsourced by the plaintiff and the amount for the same was finalized at Rs.1000/- per hole which was to be paid in addition to the contract value by the defendant.
CS (Comm.) No.: 55/2019 Page 2 of 17 -3-Accordingly, the plaintiff had initiated the said work and had paid Rs.24,000/- against the core cutting work for 24 holes.
4. It is also stated that on about 18-9-2014, the work at the site came on hold as there was protest held by the students of the university against the management and the wrongful acts of the committee and the said hold of work for about 25 days caused loss of Rs.2 lakhs on account of idle labour. It is also alleged that on account of unprofessional attitude and negligent approach on the part of the defendant and Mr. J. S. Sarin, the site engineer and other concerned officers, the progress of the site got disturbed and officers had never cooperated in providing the needful or in release of the outstanding dues within the time. It is further averred that in May, 2015 site engineer Mr. J. S. Sarin requested to change the material in tender by purchasing raw material for fire hose cabinet as per tender 2100*1260*600 at the eleventh hour of the project but considering the request of the management, the plaintiff arranged the material at much higher price in the short span of time and due to which, the plaintiff had suffered loss of Rs.2.09 lakhs which site engineer assured to make good alongwith the balance amount against the material supplied. Further it is averred that immediately after the same, the site engineer requested to arrange for additional 24@ 2790 per piece hose cabinets and other related items which were not part of the original contract but upon confirmation from the other senior officials of the defendant, the plaintiff again agreed to arrange for the CS (Comm.) No.: 55/2019 Page 3 of 17 -4- same but later on the same were being refused to be installed at the site. Therefore on account of cancellation of same, plaintiff has suffered losses of Rs.66,240/-. It is also stated that despite various intimations of the dues to the site engineer, the payment was not released. Further architect also visits but still drawing was not provided and for the same reasons the work at the site has been stopped since long due to such acts of the management of defendant, the welding machines, tools and other fabricating equipments of the plaintiff was (sic) confiscated illegally by the site engineer. It is stated that despite various requests to release the same the officials denied to return them and delay for returning equipments till July, 2017 and some other tools and equipment was got missing and in total it had caused losses of Rs.60,000/- to the plaintiff. Further it is stated that even the fire extinguishers and other related accessories were purchased by the plaintiff as per the contract but Mr. J. S. Sarin refused to install the same thereby resulting in loss of Rs.1,78,200/- further as per ledger account for hydrant system, the defendant is liable to pay Rs.3,76,000/-. Therefore plaintiff has claimed total sum of Rs.16,05,249/- which is defendant is liable to pay.
5. Summons was issued to defendant. Defendant contested the suit and filed written statement. It is contended that as per terms and conditions of the agreement the earnest money of Rs.23,000/- is refundable alongwith security deposit after one year of the actual completion of work. It is further stated that any advance payment @ 25% of the CS (Comm.) No.: 55/2019 Page 4 of 17 -5- contract value could be disbursed only against a bank guarantee. However, in the absence of the same, the advance payment has been released in three installments immediately after bringing in the material on work place. It is stated that the plaintiff did not work continuously due to which the defendant had to face of money as well as safety of the girls in the hostel was at risk in case of a fire.
6. Further it is stated that cutting holes for laying MS pipes was part of agreement, in spite of this payment for cutting 24 holes in RCC roof slabs was considered as an additional job. Rates of Rs.750/- per hole were paid after the same was approved by the office of the Director(ED), Mysore who is competent to approve the rates. Further no repair or gaps in holes and pipes was done by the petitioner. Further it is stated that there was never any protest in the college JSSATE, NOIDA on 18-9-2014 and worker from the firm were never denied access to the site. The delay is totally attributed to the plaintiff. Further it is stated that deployment of labour was very irregular and every time a new party came (sic) in the premises and totally unprepared for the job and many time they returned back without doing any work and it was for this reason the work was delayed and not completed within time. It is further stated that since the plaintiff abandoned the work at the final stage, minor pending work and testing had to be got done through some other agency at the cost and risk of the firm for which the letters were already served on the firm vide letter dated 06-8-2016 and 07-02-2017. It is also stated that the plaintiff never submitted its bill in proper CS (Comm.) No.: 55/2019 Page 5 of 17 -6- format and put up only supply bills for the basic material and testing while the agreement items were for erection, installation which delay in submission of the bill for approval to the competent authority.
7. It is further submitted that plaintiff was not showing any interest in the work, it was decided to delete the item no.5.0, 7.0, 13.0, 14.0 and 15.0 under Clause 15.1(b) of the agreement and plaintiff was also timely informed through letter dated 07-02-2017. The plaintiff had not supplied any above said material by that time or it had confirmed about of their procurement, so the claim as such is totally void. It is stated T&P such as welding machine etc. and surplus material lying at site, different groups of firm's worker visited and returned back empty hand for one reason or the other and reasons best known to them and nobody from the side of defendant stopped them from collecting their material which were finally taken back on 24-12-2018 by the representative of the plaintiff's firm.
8. Vide order dated 01-08-2022, following issues were framed and it was directed that evidence shall be recorded by learned local commissioner appointed by this court :-
i. Whether plaintiff is entitled to recover a sum of Rs.16,05,249/- from defendant ? O.P.P. ii. Whether plaintiff is entitled to recover interest from defendant, if yes, at what rate and for which period? O.P.P. iii. Relief CS (Comm.) No.: 55/2019 Page 6 of 17 -7-
9. In order to prove his case, the plaintiff has examined himself as PW-1 and proved various documents/letters which are Exhibited as Ex.PW-1/1 to Ex.PW-1/9. However it is pertinent to mention that vide order dated 30-8-2022, learned Local Commissioner observed that Ex.PW-1/6 is not on record and is de-exhibited. It is also pertinent to mention that documents are described as original but they are photocopies or computer generated copies without certificate u/s 65-B of Indian Evidence Act. It is also worthwhile to mention that Ex.PW-1/3, Ex.PW-1/4, Ex.PW-1/5, Ex.PW-1/8 and Ex.PW-1/9 are letters written by plaintiff to defendant which inter alia mentions payments due and discussion took place between plaintiff and representative of defendant regarding work done and work is to be done and request to make payment.
10. The defendant has filed affidavit of evidence of Sh. Satish Kumar Sarin and Mr. M. M. Gurushanth Prasad, however, they were not examined and Mr. B. K. Gupta was examined by way of affidavit of evidence.
11. I have heard counsel for parties and have gone through the record.
12. Written submissions was also filed on behalf of defendant.
I have also gone through the same.
13. Ld. counsel on behalf of defendant submitted that Rs.3,76,000/- which are outstanding balance as per ledger account and Rs.23,000/- towards earnest money, which they are willing to pay. It is further submitted that core CS (Comm.) No.: 55/2019 Page 7 of 17 -8- cutting was part of the agreement and therefore no additional amount for this work is payable by the defendant to plaintiff and therefore defendant is not liable to pay Rs.24000/- towards core cutting to plaintiff.
14. Further as regards loss of labour, it is merely stated that labours were stopped from doing work on account of protest in the college which caused loss of Rs.2 lakhs to them. However, no evidence was led to the effect as to how many labourers were employed and how many labourers were deployed at the site and for how many days they could not work on account of protest in the college. Therefore the amount cannot be claimed.
15. Further as regards claim of Rs.2,09,000/- on account of change of material all of sudden, it is submitted by learned counsel for defendant that plaintiff has not brought any document on record which showed that they have purchased the material and on account of change in material they suffered losses. Further, it is submitted on behalf of defendant that no machinery of equipment of plaintiff was confiscated and hence plaintiff is not entitled to claim Rs.60,000/- on that account. Further there is no evidence on record.
16. Further it is submitted that some items which plaintiff has claimed in outstanding amount are excluded as no painting/repair work was done at the site. However plaintiff has claimed Rs.2,50,000/- on account of 27 holes cabinet, security deposit, Rs.25,049/-, and Rs.2,50,000/- for additional civil work and it is submitted that there are CS (Comm.) No.: 55/2019 Page 8 of 17 -9- items mentioned in the outstanding such as Rs.24,000/- towards core cutting and in the letter dated 06-9-2016, same amount is charged again towards core cutting and therefore plaintiff is not entitled to claim said amount.
17. On the other hand, it is submitted by learned counsel for plaintiff that there is no double amount charged and core cutting was done at the request of the defendant. Further it is submitted that main witness i.e. site engineer Mr. J. S. Sarin was not examined by the defendant and hence adverse inference should be drawn against defendant as regards the additional work.
18. In rebuttal, learned counsel for defendant submitted that Mr. J. S. Sarin was 79 years old and retired and therefore was not within their control to examine and therefore no adverse inference can be drawn. Further in view of Covid-19 situation he has left job and was not interested in coming to court to give evidence in view of his advanced age.
19. My issue wise findings are as under:-
Issue No.1
20. Whether plaintiff is entitled to recover a sum of Rs.16,05,249/- from defendant ?
21. The entire amount claimed is stated in para no.16 of the plaint and therefore it is relevant here to mention same :-
16. ......... That at present the defendant is liable to pay a sum of Rs.3,76,000/- as per the ledger account for hydrant system and dire fighting work Rs.24,000/- for core cutting holes, CS (Comm.) No.: 55/2019 Page 9 of 17 -10- Rs.2,00,000/- on account of labour loss, Rs.2,09,000/- on account of sudden change in material, Rs.2,50,000/- on account of 27 hose cabinets, security deposited of Rs.58,049/-, Rs.60,000/- for machines retained by the defendant, as well as the sum of Rs.2,50,000/- for the additional civil work done by the plaintiff and amount of Rs.23,000/- given as EMD by the plaintiff, another sum of Rs.1,78,200/- thereby totaling to Rs.16,05,249/-....
Claim of Rs.3,76,000/-
22. As regards claim of Rs.3,76,000/-, same is not disputed by defendant and therefore plaintiff is liable to the said sum and defendant is liable to pay Rs.3,76,000/- to plaintiff.
Claim of Rs.24,000/-
23. As regards claim of Rs.24,000/- for core cutting holes, learned counsel for defendant has pointed out that no invoice has been issued by plaintiff to them. However, as per their own document i.e. letter dated 06-9-2016, which is not given any mark but on which fire suppression work report is mentioned and amount is claimed. The balance of the same gives Rs.3,76,026/- in which one of the items is mentioned as core cutting bill is Rs.24000/-. It is submitted by learned counsel for defendant that once said amount is claimed, it cannot be separately added again in the total outstanding. However, plaintiff has disputed the same and it is claimed that they were not part of the works and it is additional work carried out by him and letter dated 24-06-2014 is relied upon by the plaintiff in support of his contention. Learned counsel for defendant has pointed out Bill of Quantities, placed at page no.89, and according to CS (Comm.) No.: 55/2019 Page 10 of 17 -11- description of items mentioned at S.No. 1.0, one of the work is cutting holes and chases in brick or RCC walls and making good complete.
24. Firstly plaintiff has already added this amount in Rs.3,76,000/- which is outstanding as per ledger account and separate work already stands calculated. Moreover, this is not a separate work and is covered under the contract and hence cannot be granted. Hence, plaintiff is not entitled to sum of Rs.24,000/-
Claim of Rs.2 lakhs
25. Further, plaintiff has claimed Rs.2 lakhs on account of labour loss. The plaintiff in affidavit of evidence has deposed that on 18-9-2014 the work at the site came on hold as there was protest held by the students of the university against the management for about 25 days which caused loss to Rs.2 lakh on account of idle labour. The PW-1 Sh. Shakti Bhushan was cross-examined. In his cross-examination, in response to question that no agitation of student took place in girls hostels, PW-1 stated that agitation of girl student took place on 18-9-2014. further in reponse to question that how many labourers and supervisor worked at the site, PW-1 stated that labour was appointed according to work time to time as suggested by the Engineer J. S. Sareen JE and he used to supervise the work and give the details to the Engineer JS Sareen JE. Further in response to question whether he has maintained the labour register at the site, he stated that no such registered was maintained and voluntarily stated that it was CS (Comm.) No.: 55/2019 Page 11 of 17 -12- not required. He denied the suggestion that his claim is false and fabricated.
26. On the other hand, the defendant has examined DW-1 Mr. B. K. Gupta, Chief Administrative Officer of the defendant. He has categorically stated that there was never any protest in the college on 18-9-2014 at JSSATE, NOIDA. He denied that workers from the plaintiff firm were denied the access to the site. He stated that deployment of labour was very irregular and every time a new party came in the premises and totally unprepared for the job and many times they returned back without doing any work. DW-1 was also cross-examined. In response to question whether he was serving as a principal of the academy and institute, he stated that he was not serving as Principal of the defendant. Further he was asked question whether his duties includes the handling of agitation/protest by student or staff etc, he answered that as a Chief Administrative Officer, his duty involves maintaining of discipline of students and staff and he directly does not handle any agitation/protest. He did not remember who was Principal in the year 2014. Further he was asked whether the girls student had protested in the girls hostels/ college in the year 2014, he stated that Yes, there was a protest in girls hostel and college but it was in plot No. C-1/A and not C-20/1. In response to question how many plots are in the defendant campus, DW-1 stated that there are only plots as mentioned above and both the plots have separate boundaries and having separate entry gates, but there is one interconnecting gate. Further he was CS (Comm.) No.: 55/2019 Page 12 of 17 -13- asked question whether labour of the plaintiff had worked or not during protest by girls, to which he stated that he does not know whether labourers of the plaintiff had come for work during the protest. Further in response to question whether anyone was responsible to take down the attendance/ record of labours on behalf of defendant, which were working on the site, to which, he stated that no one was responsible on behalf of institute/ defendant for notking down the attendance of the labourer and voluntarily stated that it was the responsibility of the contractor only to mark the attendance of the labourer. DW-1 has categorically denied the suggestion that the labour was not allowed to enter in the premises where work to be done for 25-30 days and due to this reason, loss to the tune of Rs.2 lakh was caused to the plaintiff.
27. From the evidence of both parties, it appears that there was some protest but same was not at the site where the work was going on. However, even if it is believed that there was protest and on that account work could not take place, the plaintiff has not maintained any record as to how many labourers he had employed for doing the work and for how many days they remained idle. Further he had not given any break up as to how he has arrived at loss of Rs.2 lakhs on account of loss of labour and any amount paid to labour. Therefore he is not entitled to recover same from defendant.
Claim of Rs.2,90,000/- and Rs.66,240/-
28. As regards claim of Rs.2,90,000/- on account of sudden CS (Comm.) No.: 55/2019 Page 13 of 17 -14- change of material, the plaintiff has deposed that in May, 2015 site engineer Mr. J. S. Sarin requested to change the material in tender by purchasing raw material for fire hose cabinet as per tender 2100*1260*600 at the eleventh hour of the project but considering the request of the management, the plaintiff arranged the material at much higher price in the short span of time and due to which, the plaintiff had suffered loss of Rs.2.09 lakhs which site engineer assured to make good alongwith the balance amount against the material supplied. Further it is deposed that immediately after the same, the site engineer requested to arrange for additional 24@ 2790 per piece hose cabinets and other related items which were not part of the original contract but upon confirmation from the other senior officials of the defendant, the plaintiff again agreed to arrange for the same but later on the same were being refused to be installed at the site. Therefore on account of cancellation of same, plaintiff has suffered losses of Rs.66,240/-. The defendant has denied same. The plaintiff did not place any document on record of purchase of said material and supplying the same to the site of the defendant. In the absence of any document, the same averment cannot be believed and therefore plaintiff is not entitled to recover said amounts.
Claim of Rs.60,000/-
29. As regards claim of Rs.60,000/- on account of retaining of welding machine and other equipment, it is stated by plaintiff that welding machines, tools and other fabricating equipments of the plaintiff was confiscated illegally by the CS (Comm.) No.: 55/2019 Page 14 of 17 -15- site engineer and was not returned same till July, 2017 and some other tools and equipment was got missing and in total it had caused losses of Rs.60,000/- to the plaintiff. The plaintiff has not given break up of the same as to which machine and how many machines were retained and when they were released and on account of retention how much loss was suffered such as taking machines from market and paying rental etc. and hence there is nothing on record. Therefore merely claiming amount on the basis of statement cannot entitle plaintiff to recover from defendant.
Claim of Rs.2.5 lakhs
30. The plaintiff has also claimed Rs.2.5 lakhs for additional civil work done by him. Again there is no description of work and therefore plaintiff is not entitled to same.
Claim of Rs.1,78,000/-
31. Similarly another sum of Rs.1,78,000/- is claimed by plaintiff without there being any description of the same. The amount is claimed without there being any description as to what were procurements and whether any invoices has been raised against same and in the absence of the same the amount cannot be granted. Accordingly, plaintiff is not entitled to recover said amount.
Claim of Rs.23,000/-
32. The plaintiff has also claimed Rs.23,000/- given as earnest money by him. The counsel for defendant conceded for the same and therefore he is entitled to same.
CS (Comm.) No.: 55/2019 Page 15 of 17 -16-33. Therefore in the totality of the facts and circumstances, the plaintiff has succeeded in establishing that Rs.3,76,000/- towards outstanding balance as per ledger account and Rs.23,000/- towards earnest money are payable by defendant. Accordingly, the plaintiff is entitled to recover said amounts from the defendant.
Issue no.2
34. Whether plaintiff is entitled to recover interest from defendant, if yes, at what rate and for which period?
35. Keeping in view that transaction between parties is commercial in nature, I am of the opinion that plaintiff is also entitled to interest on the defaulted amount. Although there is no contractual rate of interest, yet in view of nature of transaction, I am of the opinion that interest at the rate of 9% would be just and reasonable. Accordingly, plaintiff is also entitled to interest @ 9% per annum when the amount becomes due till its realization.
RELIEF
36. In view of my findings in respect of issue no.1 and 2, following relief is granted :-
i. plaintiff is entitled to recover Rs.3,76,000/- towards outstanding balance as per ledger account and Rs.23,000/- towards earnest money are payable by defendant ii. plaintiff is entitled to recover interest @ 9% per annum on the said amount from the date when it becomes dues CS (Comm.) No.: 55/2019 Page 16 of 17 -17- till its realization.
37. As per discussion above, suit is decreed in favour of plaintiff and against the defendant with proportionate cost of suit as per decreetal amount, cost of pre-institution mediation and fee of the advocate which is assessed at Rs.11,000/-. Decree sheet be drawn accordingly.
38. File be consigned to record room.
Digitally signedAnnounced in open Court by GURDEEP
GURDEEP SINGH
today i.e. 21-08-2023 SINGH Date:
2023.08.21
17:22:18 +0530
(GURDEEP SINGH)
DISTRICT JUDGE (COMMERCIAL COURT)
NORTH WEST/ROHINI/DELHI
CS (Comm.) No.: 55/2019 Page 17 of 17