Delhi District Court
M/S. Sumtech Engineers Pvt. Ltd vs Iilm Academy Of Higher Learning on 28 April, 2023
1
IN THE COURT OF MS. TWINKLE WADHWA:
ADDITIONAL DISTRICT JUDGE 04 - SOUTH EAST
DISTRICT, SAKET COURTS, NEW DELHI.
In the matter of:
CS DJ No. 11578/2016
M/S. SUMTECH ENGINEERS PVT. LTD
307, Surya Complex,
Veer Savarkar Block, Shakarpur,
Delhi-110 092
Through AR/Director ....Plaintiff
VERSUS
1. IILM ACADEMY OF HIGHER LEARNING,
Plot no. 37 & 18, Greater Noida,
Uttar Pradesh,
Through Director (Education)
2. Mr. R.S. GUPTA,
Director (Education),
IILM, Lodhi Road, Lodhi Industrial Area,
New Delhi- 110 003 ....Defendants
Date of institution of suit : 28.11.2014.
Judgment reserved on : 13.04.2023.
Judgment announced on : 28.04.2023.
Final Decision : Decreed
SUIT FOR RECOVERY OF RS. 40,89,862/-
JUDGMENT
1. This is a suit for recovery of Rs. 40,89,862/- originally filed u/o. 37 CPC, however the same was directed to be CS DJ No. 11578/2016 2 treated as an ordinary suit for recovery vide order dt 19.01.2017 of Ld. Predecessor of this Court. The case of plaintiff
2. It is the case of plaintiff that it is a Private Ltd.
Company engaged in the field of construction on contractual basis. The plaintiff company has earned enormous reputation over the years in this field for timely completion of their work. The present suit is filed through Sh. Dinesh Kumar Sharma as authorized representative/ Director of the company vide Board Resolution dated 18.09.2014. Defendant no. 1 is an education centre and defendant no. 2 is its Director.
3. Initially, there was an agreement signed between parties dated 06.03.2008 for doing only the construction work in Block A and Block B of the buildings at the proposed site. Subsequently, the additional work of construction of H-Block was also handed over to the plaintiff vide agreement dated 07.05.2008. While the plaintiff was working in Block-H, they were further assigned work to complete the incomplete work of C- Block for which one Mr. R.S. Gupta from the defendant wrote an e-mail to the plaintiff dated 23.08.2010 for the completion of incomplete work by the plaintiff. The plaintiff completed the work on the oral instructions of the defendant. A draft agreement was also prepared between the parties which was e-mailed by the Architect on CS DJ No. 11578/2016 3 21.02.2011 but the written agreement was never signed for Block-C. However on mutual agreeable terms and on the oral instructions of the defendant, the plaintiff had worked beyond the terms and conditions of agreement dated 06.03.2008 and 07.05.2008. A perusal of the e-mails filed on record by the plaintiff would show the additional work done by plaintiff from 2009 to 2011. Further it was on 31.03.2011 that the work was finally completed. Thereafter certain defects were pointed out which were cured by 10.04.2011.
4. The plaintiff submitted final bill on 18.04.2011 which was approved by Col. Anupam Shukla, Project Manager of defendant no. 1 on 11.07.2011 with certain observations. In furtherance of the same, the final bill was approved by the architect namely Urbane dated 28.11.2011 and after approval it was forwarded to defendant no. 2 by the Architect. Since the original was forwarded to defendant no. 2, hence plaintiff is only in possession of copy of the same which is filed on record along with other documents.
5. It is submitted that as per the contract between the parties, the final bills are to be cleared within 30 days from the date of submission of the bill with all supporting documents duly approved by the architect. It is submitted that final bill was submitted on 18.04.2011, the same was approved by the architect on 28.11.2011 and 30 days after the approval by architect, the bill has become due on 27.12.2011. However no CS DJ No. 11578/2016 4 payment is made till date, hence interest is sought from 27.12.2011.
6. Consequently, the plaintiff sent a legal notice dated 04.09.2014 to the defendants thereby asking them to make the payments as per the contract dated 07.05.2008 but the payment was not made by the defendants. In support of this, the plaintiff has filed on record statement of accounts/ bills on record as well. Hence the present suit is filed. The case of defendants
7. In the W.S, the defendants have raised certain preliminary objections viz that the suit is without any cause of action, averments of the plaint are vague, suit suffers from mis-joinder and non-joinder of parties.
8. It is the case of defendants that the plaint of the plaintiff is vague as it does not mention in detail all the amounts alleged to be due. It does not mention in what circumstances the Architect issued letter dt 28.11.2011. Further that the suit of plaintiff suffers from mis-joinder and non-joinder of parties. It is submitted that defendant no. 2 is not running any eduction Centre and had not entered into any agreement with the plaintiff, as alleged. The plaintiff has committed breach of terms and conditions of the agreement and did not provide the services as contemplated in the Agreement despite there being no delay in making payment.
On merits, it is denied that defendant no.2 intended to get apartments constructed by plaintiff. No work order has CS DJ No. 11578/2016 5 been filed on behalf of plaintiff. It is submitted that the tender formed a part of contract and the plaintiff was awarded the work as per Agreement dt 07.05.2008 signed by Sh. Tarun Patwa on behalf of defendant no. 1, and defendant no. 2 has no role to play in signing of the contract. It is admitted that initial agreement was signed between the plaintiff and defendant no. 1 on 06.03.2008. However, the same was only for doing construction work in Block A and B of the building. Subsequently, additional work of construction of H-Block was also handed over to the plaintiff vide agreement dt 07.05.2008.
9. It is submitted that the plaintiff left the work incomplete and did not keep its promises and assurances. The plaintiff approached defendant no.2 for payments of the work which it had not performed as per the contract between the parties and therefore there is no question of delaying/avoiding the payments. As per its own case, the plaintiff completed the work only on 10.04.2011 and therefore there is no question of making payment in July, 2009.
10. It is submitted that the final bill was to be submitted only after completion of work by plaintiff but since the plaintiff did not complete the work till April, 2011 and even till today, the final bill submitted by plaintiff on 18.04.2011 had no basis. The Architect approval dated 28.11.2011 is incorrect approval and cannot be relied upon. It is denied that the plaintiff approached the Architect who wrote the alleged CS DJ No. 11578/2016 6 letter dt 28.11.2011 requesting defendant no. 2 to release the payment with interest. Rest of the contents of the plaint have been denied as wrong and incorrect. It submitted that question of making payment in July, 2009 does not arise.
11. In the replication, plaintiff has reiterated the contents of the plaint and has refuted the averments made in the W.S.
12. From the pleadings of the parties, following issues were framed by Ld. Predecessor Court vide order dt 12.11.2018:
i. Whether the plaintiff is entitled to recover from the defendant an amount of Rs. 40,89,862/ or any other amount alongwith interests @ 24% per annum or at any other rate w.e.f. 28.11.2011 or any other date till actual realization on the basis of the grounds taken in the plaint?OPP.
ii. Whether the suit of the plaintiff is bad for misjoinder of parties? OPD.
iii. Whether the suit of the plaintiff is bad non joinder of necessary parties? OPD.
iv. Whether the suit of the plaintiff is without any cause of action? OPD.
v. Relief.
13. In support of its case, plaintiff examined Sh. Dinesh Kumar Sharma as PW1. He tendered his evidence by way of affidavit Ex.PW1/X and relied upon the following documents:CS DJ No. 11578/2016 7
i). Ex.PW1/A : Copy of Board Resolution dt 18.09.2014
ii). Mark A : Copy of agreement dt 07.05.2008.
iii). Mark B : Copy of agreement dt 06.03.2008.
iv). Mark C: Copy of draft agreement dt 23.08.2010.
v). Ex.PW1/B: Email dt 23.02.2010.
vi). Ex.PW1/C : Draft agreement mail dt 21.02.2011.
vii). Ex.PW1/D: Email dt 10.08.2010 to 15.11.2010
viii). Ex.PW1/E: Certificate U/s. 65-B of IEA.
ix). Mark D : Final Bill dt 18.04.2011.
x). Mark E : Financial statement dt 11.07.2011.
xi). Mark F : Final Bill dt 28.11.2011.
xii). Ex.PW1/F: Legal notice dt 07.09.2014 with postal
receipts
xiii). Mark G : Statement of accounts/bills.
14. Thereafter Plaintiff's Evidence was closed vide order dt 10.03.2022 and the case was posted for Defendant's Evidence.
15. Defendant in support of its case examined Sh. O.P Sharma, AR of defendant No. 1 as DW1. He tendered his evidence by way of affidavit Ex.DW1/A.
16. Thereafter vide separate statement of AR of defendant No. 1, DE was also closed vide order dt 07.03.2023 and the matter was fixed for final arguments.
17. I have heard the arguments and have gone through the record of the case.
Findings of the Court:
18. The present suit is filed by plaintiff against defendant no. 1 and defendant no. 2 (being Director of defendant no.1) for recovery of the amount for the work done against a contract. The plaintiff has filed detailed bill on record in CS DJ No. 11578/2016 8 support of his claim wherein details of the work done by him are clearly mentioned. In the final bill placed by him on record, the plaintiff has mentioned the details of the work done viz. Plaster work, Steel work, Aluminum work, providing and fixing glazed ceramic tiles, Masonry work, electric work, sanitary work, wood work, plinth protection work, work of non-scheduled items, change and repair of old public health points, testing of pipe line etc. The bill dt 18.04.2011 contains minute details of each work which is claimed to be done by the plaintiff for defendant no. 1.
19. On the other hand, defendant has barely denied the averments made in the plaint. It is claimed by the defendants that the work was not done as per the agreement and there were certain defects in the work which were communicated to the plaintiff but the said defects were not rectified by the plaintiff. It is submitted that the plaintiff left the work incomplete and has not completed the work till date. However, defendant has failed to mention the details of the incomplete work in his pleadings. It is not mentioned in the W.S nor is mentioned in the evidence affidavit nor it has been put to the plaintiff witness in his cross-examination what are the details of the said work which were to be done by the plaintiff but has not been done. It is not stated how much is the work which is left incomplete, what is the rough approximation/costs of the work is left to be completed by the plaintiff and till when the work was not completed. The defendant has not filed any proof on record regarding the CS DJ No. 11578/2016 9 incomplete work and has not even narrated the same in his pleadings. What were the defects which were to be rectified are also not mentioned.
20. Whereas the plaintiff in support of its case has placed on record certificate from the Architect of defendant no. 1 to show that it had completed the work. The same is barely denied by defendant no. 1. It is not denied by defendant no. 1 that he had appointed this Architect. There is no reason given by defendant no. 1 that why the Architect had issued alleged certificate which is claimed to be false one by the defendants. No motive is imputed why the Architect had given such a false certificate to the plaintiff. The pleadings of the defendants are completely absent regarding the same except for denial of the certificate so given by the Architect. There is no such suggestion given to the plaintiff's witness what is the reason for the Architect to give such a false certificate.
21. Perusal of the W.S filed by the defendants alongwith evidence affidavit would show that there is no substantive defence put up by the defendants at all. The defendant has simply denied the completion of work by plaintiff thereby mentioning that there were certain defects in the work, without giving details of the same. However, it is pertinent to mention here that defendant has stated that the certificate given by the Architect is false one and had been fraudulently obtained. However, he has not denied the issuance of the certificate by the Architect.
CS DJ No. 11578/2016 1022. There is no cross-examination of the plaintiff's witness on the documents filed by plaintiff. The final bill filed by the plaintiff is not put to the plaintiff witness thereby pointing out, which of the details which were mentioned in the bill are false. Hence, there is no cross-examination of plaintiff's witness on these documents.
23. On the other hand, the plaintiff has specifically stated that though there were defects in the construction but the same were resolved and completed and final bill was raised after completing the said defects.
24. It is also pertinent to quote here the relevant part of cross-examination of PW1, which is as follows:
" ......I do not know who was the Architect in defendant company in the year 2011. It is correct that I have not filed any documentary proof regarding the fact that the plaintiff had not performed as per the contract between the parties nor has rectified the defects when the work was completed on 10.04.2011. It is correct that I am not aware regarding the final bill dt 18.04.2011 raised by the plaintiff to the defendant. It is correct that I never had any communication with the plaintiff company. Vol. I had communication with the plaintiff in official capacity.
It is correct that there is no document on record which shows the communication between me and the plaintiff company. I do not know if there is any email communication between the defendant no. 2 and the plaintiff company.
It is correct that I am not aware regarding the Block-C construction agreement. I am not a witness to the said agreement. Vol. I have not even signed the same. I do not know if defendant no. 2 had communicated with plaintiff company regarding completion of C-Block vide email dt 10.08.2010 to 15.11.2010.
I do not know if the Architect namely Urbane has given final approval on dt 28.11.2011......."CS DJ No. 11578/2016 11
25. Perusal of the above extract would show that there is no substantive defence being put up by the defendants. No documents have been filed by the defendants in support of their case nor their witness had any knowledge about the facts of the case.
26. It is further pleaded by counsel for defendants that defendant no.2 has been made a party in the case to bring the present suit within the territorial jurisdiction of this Court. However, to controvert the arguments so made, counsel for plaintiff has drawn the attention of the Court to various communications that have taken place with defendant no. 2 including the emails. Hence the role of defendant no. 2 in dispute between the parties has also been proved on record by the plaintiff.
27. Issue-wise findings of the Court Issue no. 1: Whether the plaintiff is entitled to recover from the defendant an amount of Rs. 40,89,862/ or any other amount alongwith interests @ 24% per annum or at any other rate w.e.f. 28.11.2011 or any other date till actual realization on the basis of the grounds taken in the plaint?OPP.
In view of the above discussion, the plaintiff is entitled for recovery of suit amount alongwith interest from the defendants. However, the plaintiff has claimed interest @ 24% p.a which is on higher side and more of penal in nature. The bill of plaintiff is dt 18.04.2011 and as per the own averments of the plaintiff, he was entitled to interest after 30 days from submission of the bills. The defects in CS DJ No. 11578/2016 12 the bill were removed on 18.04.2011, Architect approved bill on 28.11.2011 and bill became due on 28.12.2011, hence the plaintiff is entitled to recover an amount of Rs. 23,77,826/- alongwith simple interest @14% per annum from 28.12.2011 till actual realisation. This issue is accordingly decided in favour of plaintiff and against the defendants.
28. Issue no. ii). Whether the suit of the plaintiff is bad for misjoinder of parties? OPD.
And Issue no. iii).Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD.
Since both these issues are inter-connected, hence they are being dealt with together.
It is specifically claimed by plaintiff that defendant no. 2 was Director of defendant no. 1 which is denied by defendants. The defendants have not proved on record any document to show that who was the Director of defendant no. 1 at the time when the transaction between the parties took place, if not defendant no 2. Defendants have not filed on record any document to show that defendant no. 2 was not a Director at that time. The defendant no.1 is in possession of the best evidence to show who were the Directors of defendant no. 1 at the relevant time. They have not filed any document in support of their case. Further there are specific averments against defendant no. 2 to show what was his role CS DJ No. 11578/2016 13 in the contract, vide emails. Hence these issues are decided against the defendants and in favour of plaintiff.
Issue no. iv).Whether the suit of the plaintiff is without any cause of action? OPD.
In view of the above discussion, it cannot be said that there is no cause of action in favour of plaintiff. There is a cause of action in favour of plaintiff and the suit is decreed also. This issue is accordingly decided in favour of plaintiff and against the defendants.
v. Relief.
In view of the findings on the above-said issues, the suit of the plaintiff is hereby decreed for an amount of Rs. 23,77,826/- alongwith simple interest @ 14% per annum to be computed on 1st January every year from 28.12.2011 till actual realisation. One time costs of Rs. 65,000/- is also awarded in favour of plaintiff.
29. Decree sheet be drawn accordingly after payment of remaining Court Fee. File be consigned to Record Room. Announced in open court on 28.04.2023.
(TWINKLE WADHWA) ADJ-04/South-East, Saket Courts, New Delhi/28.04.2023 CS DJ No. 11578/2016