Delhi District Court
Sanjay Kr. Goel vs . M/S. Paradeep Phosphates Ltd. Rca No. ... on 17 April, 2017
Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10)
IN THE COURT OF SHRI NARESH KUMAR MALHOTRA,
ADDITIONAL DISTRICT JUDGE 06: CENTRAL : DELHI.
RCA No. 61395/16 (Old No. 05/10)
IN THE MATTER OF:
Shri Sanjay Kumar Goel,
S/o Sri R.R. Gupta,
Prop. M/S. Computers & System Techonology,
Plot No. 844, Sector 37,
Faridabad 121003 (Haryana).
.......Appellant.
Versus
M/s. Paradeep Phosphates Ltd.
Through Managing Director/ Director,
A132, Saheed Nagar, Bhubaneswar - 751007.
......Respondent.
Date of Institution : 04.09.2010.
Date of Reserving Judgment : 15.04.2017.
Date of Judgment : 17.04.2017.
APPEAL UNDER SECTION 96 READ WITH ORDER XLI OF THE
CPC.
JUDGMENT
1. Vide this judgment, I shall decide an appeal against the judgment & Result: Appeal Dismissed Page 1 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) decree dated 12.07.2010 filed by the appellant against the respondent. Vide which the suit of the appellant was partly allowed.
2. Aggrieved by the judgment, the present appeal has been filed on the grounds that the Ld. Trial Court has failed to appreciate that vide document dated 02.02.1998, the defendant admitted that the systems of the appellant were used for work till November, 1990. It is mentioned that Ld. Trial court has failed to appreciate that the Floppy is a consumable media & respondents were providing the same to the appellant for use in their office and appellant had to hand over unused and used floppies etc. The respondent thus, admitted that operation of the system was used for payroll job in December, 1990. Ld. Trial Court has failed to appreciate that the termination of contract order dated 03.01.1991 was made with malafide intention of cheating. The defendant admitted in reply dated 14.03.1991 that they made appellant's payment for November, 1990 unconditionally. Thus, the work of November, 1990 and December, 1990 was done with the system of appellant. The respondents were bound either to accept the proposal/ letter dated 05.11.1990 or to terminate the contract from their side, as they shifted their office from Delhi to Bhubaneshwar. Ld. Trial Court did not appreciate that respondents in compliance of letter dated 05.11.1990 deputed Mr. Srinivasan from Bhubneshwar to Delhi on 22.11.1990 to Result: Appeal Dismissed Page 2 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) collect the modified system and he collected the modified system vide letter dated 22.11.1990. Ld. Trial Court has not considered the evidence of the attorney. It is prayed that judgment and decree dated 12.07.2010 be set aside.
3. No reply to the appeal has been filed and both the parties filed written synopsis.
4. I have heard Ld. Counsel for the appellant and Ld. Counsel for the respondent at length and perused the record of this court as well as trial court very carefully.
5. The case of the plaintiff is for recovery of Rs. 1,19,960/ against the defendant. It is mentioned that defendant is a govt. undertaking and as per government norms and rules as well as on its own behalf as an agent of above said govts. wanted to engage some firm for doing the job of computerisation of Financial Accounting, payroll and stores accounting etc. Defendant No. 1 invited quotation for the above said purposes and the plaintiff applied and submitted his quotation. The quotation of the plaintiff was found to be the lowest and he was engaged as computer consultancy contractor for the said purpose and an agreement dated 18.08.86 was entered between the plaintiff and the defendants. The Result: Appeal Dismissed Page 3 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) plaintiff deputed his skilled staff at Paradeep and worked there for the period of one year. However, after one year work although the staff of plaintiff remained in Paradeep for a further period of 7 months but during that period the defendant no. 7, InCharge of Paradeep office did not give date to work to the staff of the plaintiff. The principal office of the defendant at Delhi was approached and said agreement was modified vide agreement dated 17.05.1988 and kept in force only to the extent of the work in Delhi office. It is also mentioned in the plaint that in October, 1990, office in which work was being done was shifted to Bhubaneshwar and the plaintiff was entitled to treat the contract as terminated but he was insisted by the officers of Delhi office to keep alive the contract. The plaintiff vide letter dated 05.11.90 submitted scheme as how the computer work can be done at Bhuvaneshwar and certain terms were agreed between the parties. As per the plaintiff he had no control over the matters as the contract was only for Delhi and was not for Bhubneshwar and the plaintiff is thus entitled to all the cost and charges including 3 months service charges of notice period and cost of his two systems for Rs. 35,000/ per system. As per the request of the defendants, the contract was continued with the specific terms till the time they install Modem on their computers, their operator would keep coming once in a month to Delhi. The plaintiff mentioned that the defendants have defaulted and contract was continued with the specific Result: Appeal Dismissed Page 4 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) terms with certain stipulation and the plaintiff was willing to continue with the contract. It is also mentioned that no prior notice was given regarding shifting of defendants office from New Delhi to Orissa and termination of the contract was from the side of the defendant. The plaintiff has claimed payment for the month of December, 1990 as Rs. 5,290/, three month notice charges as Rs. 15,870/, two systems charges as Rs. 70,000/, NSC face value as Rs. 15,000/ and interest upto 15.7.1991 as Rs. 13,800/. The plaintiff claimed a total sum of Rs. 1,19,960/.
6. The defendants No. 1 to 4 filed written statement taking preliminary objections that the defendant Nos. 6 & 7 being employees are not liable and it was specifically denied that plaintiff was allowed to work in Delhi and not in Orissa. It is also denied that any system was supplied to the defendant. The liability of the payment was denied. It is also mentioned that plaintiff failed to do the required job and there was no agreement to give three months amount. The contract was terminated after its period was expired. It is also mentioned that it was settled between the parties that contract was continued with month to month basis.
7. Perusal of the file reveals that plaintiff filed replication and controverted the allegations made in the written statement and further reaffirmed the Result: Appeal Dismissed Page 5 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) averments made in the plaint. On 19.03.2001, the following issues were framed by Ld. Trial Court which are as under:
(i) Whether the plaintiff is entitled to recover processing charges Rs. 5290/ for December, 1990 proceedings ? (OPP)
(ii) Whether the plaintiff is entitled to recover the amount of Rs. 70,000/ as for supply of two computer systems supplied to the defendant ? (OPP)
(iii) Whether the plaintiff is entitled to get the refund of NSC with face value of Rs. 15000/? (OPP)
(iv) Whether the plaintiff is entitled to recover interest from the defendant ? If so, at what rate, on what amount and for what period ? ( OPP)
(v) Whether the suit of the plaintiff is liable to be rejected under Section 7 Rule 11 CPC for disclosing no cause of action against the defendants No. 2 to 7 ? (OPP)
(vi) Whether the suit is bad for misjoinder of paties ? (OPD)
(vii) Whether the agreement allegedly entered into between plaintiff and defendant was valid upto 31.03.1990 ? (OPD)
(viii) Whether no notice was required for the termination of the agreement between the plaintiff and defendant ? (OPD)
(ix) Relief.
The Ld. Trial Court has partly decreed the suit and decided the issue Nos. 7, 8 & 2 decided against the plaintiff, issue Nos. 3, 1, 5 & Result: Appeal Dismissed Page 6 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) 6 were decided in favour of the plaintiff.
8. It is contended by Ld. Counsel for the appellant that Ex. PW1/G shows that systems were delivered to Mr. Srinivasan and there is receiving of Mr. Srinivasan on the letter dated 22.11.1990. Thus, this shows that systems were duly submitted to Sh. Srinivasan and plaintiff is entitled to amount of Rs. 70,000/ for the systems. It is also contended that Ld. Trial Court has wrongly decided the issues against the plaintiff. It is prayed that judgment and decree dated 12.07.2010 be set aside. On the other hand, ld. Counsel for the respondent contends that plaintiff never entered into witness box for proving the averments of the plaint. The evidence of plaintiff was given by SPA Sh. Ramesh Raj Gupta and as per judgment "Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd. & Ors." AIR 2005 SC 439, the evidence of attorney cannot be taken into consideration. The transactions did not take place in presence of witnesses and this fact is admitted by PW1 in his cross examination. It is also contended that appellant did not want to visit Paradeep, Orissa and the appellant was in breach of the agreement, thefore, not entitled for payment of any system as per terms of the agreement. It is also contended that respondent never agreed to the request of the appellant for modification of the agreement. In the letter dated 22.11.1990, it is not mentioned that system has been handed over Result: Appeal Dismissed Page 7 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) to the respondent.
9. In the present case, agreement Ex. PW1/B is not denied by the parties. As per agreement in case of termination of contract, for any reason whatsoever all Floppies etc. concerning PPL shall be handed over to PPL by the plaintiff. The implemented system & uptodate executable programs object codes inc. all revisions/ modifications shall be handed over to PPL for a sum of Rs. 35,000/ for each implemented system in case termination is from PPL side or the Contract is not extended at maturity. No payment on A/C of System shall be payable if termination is from Contractor side before maturity and or on default of Contractor side.
In the present case as per this clause it is to be seen whether the system has been handed over to the respondent or not. Ld. Counsel for the appellant has heavily placed reliance on letter Ex. PW1/G to show that system has been handed over to Mr. Srinivasan. There is mention of 7 items in the letter dated 22.11.1990 but there is no mention that systems were handed over to Mr. Srinivasan.
10. Ex. PW1/B is agreement dated 18.08.1986 and letter dated 17.05.1988 was sent to M/s. Computers & System Technology. There is no letter on the record sent by the plaintiff to show that he ever accepted the letter Result: Appeal Dismissed Page 8 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) dated 17.05.1988. A letter dated 05.11.1990 is on the record sent by the plaintiff. Vide this letter the plaintiff has requested that he can work from Delhi without shifting to Bhubaneshwar but there is no correspondence on the part of the respondent to show that respondent ever agreed to letter dated 05.11.1990 sent by the plaintiff. The respondent has also sent a letter dated 03.01.1991 vide which the appellant was given three months notice. I am of the view that Ld. Trial Court has rightly held that there was no necessity to issue three months notice as letter dated 05.11.1990 was not accepted by the respondent.
11. In the present case, the plaintiff has not stepped in the witness box and his attorney i.e. his father stepped in the witness box as PW1. This witness during cross examination admitted that M/S. Computer & System Techonology is the sole proprietorship concern of his son Sh. Sanjay Kumal Goel. He also admitted that he do not know with whom the plaintiff firm used to deal with for the purpose of contract. This witness also admitted that he has not worked with this firm in 1990. He also admitted that he never worked with this firm. This witness also admitted that agreement between the plaintiff and defendant is not taken place in his presence. He admitted that transaction that has taken place place between the plaintiff and defendant have not been taken in his presence. This witness also admitted that work was not completed in his Result: Appeal Dismissed Page 9 of 10 Sanjay Kr. Goel Vs. M/s. Paradeep Phosphates Ltd. RCA No. 61395/16 (Old No. 05/10) presence. PW1 also admitted that day to day business with the plaintiff and the defendant used to be conducted by his son. It is also admitted that he has no authority to deal with the plaintiff firm in any manner and entire transactions taken place in the year 1997. I am of the view that in view of judgment "Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd. & Ors." AIR 2005 SC 439 and as per judgment titled as "Man Kaur (dead) by LRs. Vs. Hartar Singh Sangha 2010 X AD (S.C.) 304, the plaintiff was required to appear as a witness in the witness box. PW1 being attorney cannot prove the transaction between the plaintiff and the defendant.
12. In view of the above discussions, I am of the view that there is no illegality or infirmity in the judgment dated 12.07.2010 passed by Ld. Trial Court. The appeal filed by the appellant is without any merits and same is hereby dismissed with no order as to cost. Decree sheet be prepared accordingly. Copy of judgment be sent along with Trial Court Record. Appeal file be consigned to record room, after necessary compliance.
Announced in open Court. (Naresh Kumar Malhotra)
Dated: 17.04.2017. ADJ06(Central)Delhi
Result: Appeal Dismissed Page 10 of 10