Delhi District Court
Mr. U. S. Tomer vs M/S. India Bulls Retails Services Ltd on 29 May, 2010
IN THE COURT OF SURESH KUMAR GUPTA,
ADDITIONAL DISTRICT JUDGE 03 (EAST),
KARKARDOOMA COURT, DELHI
Suit No.328/2009
ID No. : 02402C0032922009
In the matter of :
Mr. U. S. Tomer,
Sole Proprietor
M/s. Nukul Associates,
H553/5, Ali Vihar,
Badarpur, Near Sarita Vihar,
New Delhi - 110 044 .....Plaintiff
Versus
1. M/s. India Bulls Retails Services Ltd.,
(Formerly Piramyed Retail Ltd now taken
over by India Bulls Retails Services Ltd.)
ShopPark, Plot No.3, Surajmal Vihar,
Central Business District of East,
Shahdara, Delhi - 110 092
Through its Managing Director
Also at :
M/s. India Bullls Retails Services Ltd.,
(Formerly Piramyed Retail Ltd now taken
over by India Bulls Retails Services Ltd.)
Basement Jupiter Tower,
Elephiston Road, Station
West Mumbai - 400 013
Through its Managing Director
Suit No.328/2009 Page 1 of 11
Also at :
SP Center, C Wing,
41,44 Menu Desai Marg,
New Radio Club, Kolaba,
Mumbai - 400 005
2. M/s. Piraymed Retail Ltd.
Peninsula Spenta,
Mathuradas Mills Compound,
Senapati Bapat Marg, Lowere Parel
West Mumbai - 400 013
Though its M.D. .....Defendants
Date of Institution : 31.01.2009
Date of arguments heard : 17.05.2010
Date of judgment/order : 29.05.2010
O R D E R
1. The plaintiff has filed the suit U/o 37 CPC for recovery against the defendants with the averments that he is a sole proprietor of M/s. Nukul Associates, H553/5, Ali Vihar, Badarpur, Near Sarita Vihar, New Delhi. He is competent and empowered to file, sign, verify and institute the suit on behalf of his firm. He is aware of the facts of the case so he can depose about the same. He is carrying on the business of supply and installation of fire fighting equipments. The defendants had ordered for installation of fire fighting equipments along with fire fighting work vide order No.PRL/IBMS/ED/SJ/NM13 dated 11.04.08 for their mega store i.e. Indiabulls Mega Store, Plot no.3, Opp. Surajmal Vihar, Central Business of District East, Shahdara, Delhi92. The total value of the work Suit No.328/2009 Page 2 of 11 order was Rs.804639/. The defendant was to pay 30% of the contract value in advance, 30% to be paid after the delivery of the material, 30% after the completion of the work and 5% as retention money was to be paid after 12 months.
2. The defendants were to pay the 30% advance before the start of the work. The advance payment of 30% was made only on 26.05.08 through cheque No.208608 dated 12.05.08 of Rs.231094/ drawn on Centurian Bank of Punjab, Mumbai. He supplied the various articles and material at the site as per work order during the month of April and May, 2008 and defendant was required to make the payment of 30% of the tender value after the delivery of material at site. The defendants failed to make the payment according to terms and conditions of work order. The completion of the work was time bound so he completed the work on 09.06.08 and site was handed over on 12.06.08. He has completed the work within time frame from the date of receipt of 30% advance. The work was done to the satisfaction of the defendants but payment of Rs.4,98,976/ has not been paid so far. The defendants have held the payment so said amount along with interest @ 24% p.a. is payable as per market practice so a sum of Rs.5,68,832/ is due including the interest of Rs.69,856/. Hence, this suit.
3. The defendants filed an application for leave to defend the suit coupled with the detailed affidavit to the effect that defendant No.1 is a company incorporated under Companies Act. Sh. Mohd. Zaffar is duly Suit No.328/2009 Page 3 of 11 authorized vide Board Resolution dated 31.04.09 to sign, verify and defend the suit and to take legal steps including to initiate legal proceedings. The suit is not maintainable. A contract for supply and installation with associated work was awarded to the plaintiff by the defendants and work was to be completed latest by May 11, 2008. The time was the essence of the contract as per clause 8 of the contract. The plaintiff was to supply the best quality material and works were to be carried out in a good engineering manners with neat appearance as per clause 3 of the contract. On 09.05.08 defendants made an advance payment of 30% of the value of the contract vide cheque No.208608 dated 09.05.08 of Rs.2,41,392/ immediately after the invoice was raised by the plaintiff. It is wrong that advance payment was made on 26.05.08. No further invoice could have been raised by the plaintiff as work didn't progress. The invoice and covering letter dated 09.06.08 filed by the plaint at page 28 & 29 of the documents are bogus, forged and fabricated. The plaintiff supplied the inferior quality material and carried out the work with very poor engineering. The work was very shabby. The defects were pointed out by the consultants to the plaintiff at the site but plaintiff didn't rectify them. The plaintiff brought very few material that too of poor quality at the site. The entire items of the works were never supplied and brought to the site by the plaintiff. The plaintiff was lagging behind the schedule and failed to complete the work within stipulated time which resulted into closure of mall and product. The Suit No.328/2009 Page 4 of 11 work in fact was never completed and the site was never handed over to the defendants. The work undertaken by the plaintiff is less in value than the advance payment made by the defendant. The challans filed by the plaintiff relates to ancillary work. The inventory details for handing over (at page 31 to 33 of the documents) are bogus, fabricated and forged which do not bear the stamp of the defendant. It is denied that plaintiff is proprietor of M/s. Nukul Associates. The plaintiff is not a competent person to file the suit.
4. The plaintiff filed the reply to the effect that leave to defend has been filed U/o 37 rule 3 CPC which is not maintainable. There is no defence available to the defendants. The date of completion was 11.05.08 as per work order dated 11.04.08 but the clause 3 shows that 30% payment was required to be made in advance before the conduct of the work. The defendant failed to make the payment in advance. The payment was not made on 09.05.08. The cheque was of out station and no one is supposed to encash the cheque on the same day. The cheque was issued from Mumbai office and the said cheque along with payment voucher was sent through courier which was received by the plaintiff on 23.05.08. The cheque was deposited on the same day and payment was received on 26.05.08. The advance payment was therefore received only on 26.05.08. Clause 8(b) says that completion schedule shall suitably be modified or coordinated. The cheque in question was issued on 12.05.08 so project was delayed by the defendants and defendants cannot Suit No.328/2009 Page 5 of 11 take benefit of their own default. There was an oral extension of the contract otherwise there was no occassion to issue the cheque for the advance payment after the date of the completion of the work. Clause 9
(a) says that a maximum of 10% deduction can be made if delay is attributable to the plaintiff. No delay has been caused by the plaintiff. The material supplied was exact of specific quality and approved make. No objection was ever raised by the defendants. Clause 3(c) says that plaintiff is required to replace the poor quality material and as per clause 3(a) the defendants have a right to refuse the material not approved by the consultant but no objection or communication was made by the defendants except by raising false and frivolous pleas. The suit is within the four corners of the order 37 CPC.
5. On merits, it is denied that Mr. Pradosh Mohanty is authorized vide Board Resolution dated 31.04.09 to sign, verify and defend the present case and to take legal steps including to initiate legal proceedings for the defendant. The affidavit is a bundle of lies. The advance payment was received only on 26.05.08. The averment that payment was made on 09.05.08 is incorrect. The invoice was raised on 09.06.08 i.e. after the completion of the work. No payment is received after the raising of invoice. The work was completed well within time to the satisfaction of authorized representative and consultant of the defendants. All the inventory were installed in the good condition. No objection was ever raised by site incharge and consultant regarding quality of material and Suit No.328/2009 Page 6 of 11 poor engineering work. The site incharge signed the inventory form on 12.06.08 with the remarks that all material installed. It is wrong that invoice and covering letter dated 09.06.08 (at page 28 & 29) are bogus and fabricated documents. It is denied that few material that too of poor quality was brought to the site by the plaintiff. It is wrong that the work undertaken by the plaintiff is less in the value then the advance payment made by the plaintiff. It is denied that defendants suffered serious and considerable loss. It is denied that the challans filed along with plaint relate only to ancillary work. It is wrong that inventory details (at page 31 to 33) are bogus and fabricated document. The site incharge has signed the relevant papers who was duly authorized by the defendants. No defence is available with the defendants so his application be dismissed. The application is duly supported by an affidavit.
6. Ld. counsel for the defendants submitted that work was not completed within the time. Ld. counsel further submitted that the work was not completed to the satisfaction of the consultant and site incharge of the defendant. Ld. counsel further submitted that the defendant brought it to the notice of the plaintiff that work is not to the satisfaction and poor quality material is supplied at the site. Ld. counsel for the plaintiff, on the other hand, urged to the contrary.
7. I have heard Ld. counsel for the parties and perused the entire record of the case.
8. In view of the principles laid down in Mechelec Engineers and Suit No.328/2009 Page 7 of 11 Manufacturers v. M/s. Basic Equipment Corporation, AIR 1977 SC 577, it has to be seen whether defendant is entitled for leave to defend or not.
9. The word 'defence' in rule 3 of order 37 CPC says of lawful defence i.e. of fact or law. The defendant may plead any defence which arises as an issue either of law or fact. The settled position is that if the application for the grant of leave to defend raises an issue which is by its nature triable, leave to defend must be granted. A triable issue is an issue which warrants a trial for its determination.
10. A purchase order dated 11.04.08 was executed between the plaintiff and defendants with certain terms and conditions which were accepted by both the parties. The completion date was 11.05.08. The terms of the payment show that 30% of the payment in advance was to be given by the defendant to the plaintiff and 30% of the material value was to be given after the delivery of material at site. It is admitted fact that advance payment was not given on the date when the purchase order was signed by the parties. The record shows that 30% payment in advance was given by the defendant. The date is disputed. The defendants have alleged that the cheque is dated 09.05.08 whereas plaintiff has alleged that the cheque was dated 12.05.08 and the payment was received on 26.05.08 from the bank. The cheque was received from Mumbai office of the defendant No.1 which was handed over to the plaintiff. The plaintiff presented the cheque to the bank for encashment and definitely it Suit No.328/2009 Page 8 of 11 must have taken sometime for encashment because it was an out station cheque. The work was allegedly completed on 09.06.08 and site was handed over to the site incharge and consultant of the defendants on 12.06.08. There was delay in making the payment by the defendants. The plaintiff has allegedly completed the work within one month from the date of receipt of advance payment from the defendants.
11. The defendants have alleged that the work carried out by the plaintiff was not of good engineering nature though plaintiff has alleged that work was of good quality nature and site was handed over to the site incharge and consultant of the defendant. The plaintiff has placed on record photocopy of the inventory details dated 12.06.08 duly signed by one Gopal Singh and authorized signatory of the defendants. The plea that the inventory details are forged doesn't inspire confidence. The defendant at no point of time has raised any objection in writing that plaintiff has not handed over the site in question either to the defendants or to their authorized signatory or person. There is nothing in writing from the defendants that any defect in the work carried out by the plaintiff was brought to his notice. The plea is taken for the first time in the application for leave to defend.
12. The plea of the defendants that the poor quality material was delivered at site again is of without any merit. The defendants have again failed to bring on record anything that plaintiff has installed the material of a particular brand whereas plaintiff was supposed to use the material Suit No.328/2009 Page 9 of 11 of some other quality brand. There is no report from the consultant or site incharge that the material delivered at the site was of sub standard quality. One cannot be allowed to raise a plea in the air without being substantiated with the documentary evidence.
13. The plea that the work carried out by the plaintiff was less than the amount given in advance is without any legs to stand because nothing is placed on record by the defendants to show that the work done by the plaintiff pertains to the particular amount which is less than the amount given in advance. There is no report from the expert even at this stage to further the plea.
14. The plea that the ancillary work was completed by the plaintiff instead of main work is again without any merits. The defendants have not categorized between ancillary work and main work. There is nothing in the leave to defend as to what was the ancillary work or what was the main work. It was for the defendants to specify which they have failed to do so.
15. The plea that forwarding letter and retail invoice are forged and fabricated is without any substance. The plaintiff had requested the defendants vide letter dated 13.09.08 to release the payment and thereafter reminders for release of payment was sent through email to the defendants on 03.09.08 & 05.09.08 but in vain. A legal notice dated 01.10.08 was issued to the defendants but of no use. The defendant at no point of time replied either to the reminders or to the legal notice issued Suit No.328/2009 Page 10 of 11 by the plaintiff. All the defects namely poor quality material, poor engineering work, value of the work is less than the advance amount and ancillary instead of main work was done could have been easily raised by giving the reply to the plaintiff. The defendants remained silent for the reason best known to them. The plea raised by the defendants is an after thought which is devoid of any merit.
16. The defendants have not placed any material on record to support their case. No valid defence or triable issue is established by the defendants in order to entitle them for leave to defend. In view of my aforesaid discussion, there is no ground to allow the application for leave to defend. Hence, application for leave to defend is dismissed.
17. The suit of the plaintiff for recovery U/o 37 CPC against the defendants is decreed to the effect that plaintiff is entitled for a sum of Rs.4,98,976/ along with interest @ 10%p.a from 13.06.08 from the defendants, jointly and severely, till the date of decree. The suit is decreed with cost. Decree sheet be prepared. File after completion be consigned to record room.
Announced in the open Court on 29.05.2010 (Suresh Kumar Gupta) Additional District Judge03 (East), Karkardooma Court, Delhi / 29.05.2010 Suit No.328/2009 Page 11 of 11