Delhi District Court
M/S. J.B.A. Concrete Solutions Pvt. Ltd vs M/S. Cue Apparels Pvt. Ltd on 11 September, 2018
IN THE COURT OF MS. SHUNALI GUPTA, ADJ06, SOUTH DISTRICT,
SAKET COURT COMPLEX, NEW DELHI
CS No. 186/18
CS DJ No. 206740/2016 (Suit)
CNR No.: DLST010003272010
and
CS No. 187/18
CS DJ No. 205612/2016 (Counterclaim)
CNR No.: DLST010001112014
In the matter of:
M/s. J.B.A. Concrete Solutions Pvt. Ltd.
135, Arjun Nagar, Kotla Mubarakpur,
Opposite Defence Colony,
New Delhi110003.
Through its Authorized Representative
Shri Vinod Kandari
.......Plaintiff
VERSUS
M/s. Cue Apparels Pvt. Ltd.
E56, Sector8, NOIDA, Uttar Pradesh.
And At:
Registered office at:
14, Golf Links, New Delhi110003.
Through its Managing Director
.......Defendant
Date of institution of suit : 21.08.2010
Date of filing of counterclaim : 28.04.2011
Date reserved for judgment : 06.09.2018
Date of pronouncement of judgment : 11.09.2018
Suit for Recovery of Rs.8,46,225/ and CounterClaim for recovery of a
sum of Rs.9,52,466/.
J U D G M E N T:
1.Vide this judgment, I shall dispose off a suit for recovery and the counter claim filed by the defendant.
CS DJ No.206740/16 and 205612/16 Page No.1/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. 1.1 For the sake of clarity, throughout the judgment, the parties shall be denoted by the same nomenclature as in the initial plaint viz. M/s. J.B.A. Concrete Solutions Pvt. Ltd. as the 'plaintiff' and M/s. Cue Apparels Pvt. Ltd. as the 'defendant'.
The brief facts of the case as culled out from the pleadings of the parties are summarized as under:
1.2 Plaintiff is a Private Limited Company and besides other jobs, is specializing in the work of treating concrete floors by using famous Ash Ford Formula. On behalf of the company, the suit has been filed by Sh.
Vinod Khandari - Business Head of the company, who has been duly authorized in this regard by the Board of Directors of the company. 1.3 Defendant is also a Private Limited company having its registered office at the abovementioned address.
1.4 Pursuant to the quotation dated 01.09.2008 submitted by the plaintiff, the defendant placed a purchase order dated 17.09.2008 upon the plaintiff for an estimated amount of Rs.7,52,050/ for job to be done by the plaintiff at the site of the defendant at NOIDA. Along with the purchase order, the defendant also gave a cheque of Rs.1.85 lacs to the plaintiff. Thereafter, the plaintiff sent two performa invoices dated 22.09.2008 and 03.11.2008 to the defendant. All the relevant goods and material required at the site of the defendant, were also dispatched by the plaintiff on 05.11.2008 vide delivery challan no.590.
CS DJ No.206740/16 and 205612/16 Page No.2/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. 1.5 Work was commenced and on 17.12.2008, the plaintiff raised a bill bearing no.1321 for a sum of Rs.1,29,651/ against which the defendant released an amount of Rs.1.00 lac vide cheque dated 18.12.2008. Further, on 22.01.2009, the exact measurement of the work done was made by the plaintiff in presence of the officers of the defendant, who were duly satisfied with the job done at the site. Thereafter, plaintiff raised its final bill dated 03.02.2009 for a sum of Rs.8,69,998/ and submitted the same with the defendant company. After adjusting the partpayments made by the defendant during the course of work and the advance payment, a sum of Rs.7,14,649/ was due & payable by the defendant which was also reflected in the statement of account for the period 01.04.2008 to 31.03.2009. However, despite several reminders and calls, the defendant failed to clear the outstanding balance. Legal Notice dated 19.07.2010 was also sent to the defendant for clearing the dues. The said letter was replied by the defendant vide reply dated 29.07.2010. Further, the defendant had also sent a notice dated 31.07.2010 to the plaintiff thereby raising a false & frivolous claim of Rs.22,85,000/ upon the plaintiff. The said notice was replied by the plaintiff vide reply dated 07.08.2010.
1.6 However, despite exchange of letters, the defendant failed to clear the dues. Hence, the present suit for recovery seeking a sum of Rs.8,46,225/ from the defendant which comprises of Rs.7,14,649/ as CS DJ No.206740/16 and 205612/16 Page No.3/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
principal sum due and Rs.1,31,576/ as interest thereon w.e.f. 03.02.2010 till the date of filing of suit. Further, pendentelite and future interest @12% per annum has also been claimed.
2. Written statement has been filed by the defendant interalia taking the preliminary objections that this court lacks territorial jurisdiction and that the suit is bad for nonjoinder of necessary and proper party. 2.1 On merits, it is admitted that the defendant had placed the work order upon the plaintiff for flooring and plastering of the walls of the ground floor of the defendant's premises at NOIDA and an advance payment of Rs.1.85 lacs was given to the plaintiff. It is also admitted that the company had paid a further sum of Rs.1.00 lac to the plaintiff, but has claimed that the said payment was an advance payment. As regards the averment of exchange of legal notices and replies, the same has been admitted. However, the claim of the plaintiff for recovery of the sum of Rs.8,46,225/, has been absolutely denied.
2.2 The case setforth by the defendant is that the site for which the work order was placed upon the plaintiff, was its factory premises and part of the said floor was reserved by the defendant for holding important meetings with its prestigious clients and senior officers. The plaintiff assured the defendant that he shall accomplish the assigned work on the said floor impeccably and shall complete the said work within a period of two months i.e. on or before November, 2008. In order to facilitate CS DJ No.206740/16 and 205612/16 Page No.4/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
expeditious execution of the work, the defendant also released an advance payment of Rs.1.85 lacs to the plaintiff in September, 2008. However, the plaintiff failed to finish the work within the stipulated time and handed over the possession of the ground floor of the site to the defendant in the month of April, 2009 representing that the assigned work has been completed. Upon inspection, glaring defects in the work were noticed. The defects were communicated and brought to the notice of the plaintiff, who duly admitted the same and assured to rectify them. However, despite assurance, the plaintiff failed to rectify the said defects. Because of the existence of such defects in the work, the defendant could not use the ground floor of the premises which was designated for holding important meetings with its clients, which in turn, caused loss to the reputation and goodwill of the defendant besides mental and physical harassment.
2.3 The averments made in the plaint regarding dispatch of goods and material by the plaintiff on 05.11.2008; the issuance of bills dated 17.12.2008 & 03.02.2009 and the measurement of work done on 22.01.2009 at the site - all have been denied. Dismissal of the suit has been sought.
2.4 In addition to the written statement, it is stated in the counterclaim that due to the delay in execution & completion of the work and the defects in the work carried out, the defendant suffered loss in his goodwill, CS DJ No.206740/16 and 205612/16 Page No.5/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
reputation & business for which he is entitled to damages of Rs.5.00 lacs besides refund of an advance of Rs.2.85 lacs given to the plaintiff. Hence, by the counterclaim, the recovery of a sum of Rs.9,52,466/ has been sought details whereof are as under:
S. No. Particulars Amount
(1) Refund of advance given by defendant to the Rs. 2,85,000.00
plaintiff as advance payment with interest.
(2) Damages and compensation for the loss of Rs. 5,00,000.00
goodwill, reputation, business, defamation,
mental harassment, etc.
(3) Interest @8% on the abovesaid amount from Rs. 1,67,466.00
September, 2008 till the date of filing of the
present counterclaim i.e. April, 2011
TOTAL Rs. 9,52,466.00
3. Replication has been filed by the plaintiff reiterating the averments made in the plaint and denying the contrary averments made in the written statement and counterclaim filed by the defendant. It is stated that the defendant has become dishonest and in order to avoid the lawful payments due to the plaintiff, the false & frivolous counterclaim has been filed.
4. Upon completion of the pleadings, on 24.11.2014 the following issues were framed in the suit and the counterclaim:
Issues in the suit:
1. Whether this court does not have territorial jurisdiction to try the suit? OPD
2. Whether the suit is bad for nonjoinder of necessary parties?
OPD CS DJ No.206740/16 and 205612/16 Page No.6/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
3. Whether the plaintiff is entitled to a decree of Rs.8,46,225/ (Rupees Eight Lacs Forty Six Thousand Two Hundred Twenty Five only) with pendentelite and future interest @12% per annum from the date of filing of suit till realization? OPP Issues in the counterclaim:
4. Whether the counter claim is barred by time? OPP
5. Whether the counter claimant is guilty of breach of contract?
OPP
6. Whether the counter claim has no cause of action? OPP
7. Whether the counter claimant is entitled to decree of Rs.9,52,466/ (Rupees Nine Lakhs Fifty Two Thousand Four Hundred Sixty Six Only) with pendentelite and future interest @12% per annum till the realization of the amount? OPD
8. Relief.
Note: The onus of the issues framed in the counterclaim has been stated as per the nomenclature of the parties.
5. In support of its case, the plaintiff has examined 3 (three) witnesses which are as under: (1) PW1 Sh. Jagdeep Bhalla - Managing Director of the plaintiff company. In lieu of his examinationinchief he has deposed by way of affidavit Ex.PW1/1 wherein he has reiterated the case set forth in the plaint and has relied upon the following documents:
i. Ex.PW1/A - Copy of the quotation dated 01.09.2008. ii. Ex.PW1/B - Original purchase order dated 17.09.2008. iii. Ex.PW1/C - Copy of the cheque sent as advance along with purchase order.CS DJ No.206740/16 and 205612/16 Page No.7/ 21
M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
iv. Ex.PW1/D - Photocopy of the performa invoice dated 22.09.2008 for Rs.8,00,993/.
v. Ex.PW1/E - Photocopy of the performa invoice dated 03.11.2008 for Rs.58,851/.
vi. Ex.PW1/F (OSR) - Bill no.1321 dated 17.12.2008 for Rs.1,29,158/ issued by the plaintiff.
vii. Ex.PW1/G (OSR) - Bill no.1334 dated 03.09.2009 for Rs.8,69,998/ issued by the plaintiff.
viii. Ex.PW1/H - Statement of account for the period 01.04.2008 to 31.03.2009 reflecting a debit balance of Rs.7,14,649/ against the defendant.
ix. Ex.PW1/I (Colly) - Legal Notice dated 19.07.2010 sent by the plaintiff with AD card.
x. Ex.PW1/J - Reply dated 07.08.2010 sent by the plaintiff to the legal Notice dated 31.07.2010 sent by the defendant.
(2) PW2 Sh. Ganesh Dutt Joshi - an employee of the plaintiff company. In lieu of his examinationinchief he has deposed by way of affidavit Ex.PW2/1 wherein he has reiterated the case set forth in the plaint and has relied upon the documents already exhibited by PW1. (3) PW3 Sh. Bishan Singh - Finance Manager in the plaintiff company. In lieu of his examinationinchief he has deposed by way of affidavit Ex.PW3/A wherein he has reiterated the case set forth in the plaint and has relied upon the following documents:
i. Ex.PW3/1 - Board Resolution dated 19.07.2010 authorizing Mr. Vinod Kandari to file the present suit.
ii. Ex.PW3/2 - Board Resolution dated 19.07.2012 authorizing Mr. CS DJ No.206740/16 and 205612/16 Page No.8/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
Aneet Chauhan in place of Mr. Vinod Kandari as he has resigned from the services of the plaintiff company.
iii. Ex.PW3/3 - Board Resolution dated 13.07.20016.
All the three witnesses were duly crossexamined by the defendant's counsel and thereafter, PE was closed.
6. In the defence evidence, only one witness has been examined namely DW1 Sh. Surya Shekhar - working with the defendant company as an Executive to the Directors of the Company. In lieu of his examinationinchief he has deposed by way of affidavit Ex.DW1/A and has relied upon following documents:
i. Ex.DW1/1 - Board of resolution dated 20.05.2010. ii. Ex.DW1/2 - Memorandum of Association of the defendant company. iii. Ex.DW1/3 - Reply dated 29.07.2010 to the legal notice of plaintiff (already marked as Ex.PW1/5).
iv. Ex.DW1/4 - Legal Notice of plaintiff dated 19.07.2010 (already marked as Ex.PW1/I).
v. Ex.DW1/5 - Defendant's legal notice dated 31.07.2010. vi. Ex.DW1/6 (OSR) - Copy of Minute Book containing Minutes of Meeting dated 20.05.2010.
The witness was crossexamined by Ld. Counsel for plaintiff whereafter DE was closed.
7. Final arguments addressed by Ld. Counsel Sh. Arvind Kumar Gupta for the plaintiff and Ld. Counsel Sh. Rahul Sharma for defendant were heard and record carefully perused.
CS DJ No.206740/16 and 205612/16 Page No.9/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
8. Discussion on Issues:
ISSUE No.1 : Whether this court does not have territorial jurisdiction to try the suit?
Ld. Counsel for the defendant has argued that since as per the work order, the work was to be done at the defendant's office situated at NOIDA, the work order/ purchase order was executed at its NOIDA office and all the communications in respect of the said work order were made at NOIDA office including the legal notices, the jurisdiction of Courts at Delhi is not made out at all.
On the other hand, Ld. Counsel for the plaintiff has submitted that first of all the registered office of the defendant is at Golf Links, Delhi; the partpayment of Rs.2.85 lacs was tendered to the plaintiff at its Delhi office and more importantly, the cheques with regard to these payments were issued by the defendant from its bank account in HDFC Bank, Defence Colony branch, New Delhi. Hence, viewing from both the angles - that the registered office of defendant is at Delhi and by payment of money to the plaintiff at Delhi, part cause of action has obviously arisen at Delhi and thus, the jurisdiction of Delhi Courts is clearly made out.
Now before adverting further on the aspect of territorial jurisdiction, I may note that this issue with regard to territorial jurisdiction has already been settled by an order dated 02.01.2012 passed on an application moved by the defendant for rejection of the plaint for lack of territorial jurisdiction. In the said order, it was clearly observed that as the registered office of the defendant is in CS DJ No.206740/16 and 205612/16 Page No.10/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. Delhi and also payment was admittedly made at Delhi, the jurisdiction of Delhi Courts is made out. The pertinent observations made in the said order by my Ld. Predecessor on this aspect, are extracted and reproduced as under:
".....For the following reasons, the application under order VII rule 11 CPC is dismissed: i. Section 20 CPC is in respect of place or residence Or place of carrying of business Or cause of action arises, partly or wholly.
ii. Paragraph 15 of plaint describes the place of purchase order was in Delhi and part payment through account payee cheque were also made by defendant's banker, HDFC Bank, Defence Colony, New Delhi. The averments made in the plaint are to be considered true as narrated by the plaintiff, from the point of view of application under order VII rule 11 CPC. Secondly, in Globus Agronic Ltd. vs. Banque National 1999 III AD Delhi 780, it was held that when payment was tendered at the counter in Delhi, jurisdiction of Delhi court is made out; to say place of payment determines the jurisdiction.
iii. By reading clause 1 and 2 above together, there is cause of action arisen in Delhi, court at Delhi has jurisdiction, in terms of section 20(c) of CPC.
iv. The defendant's registered office is in Delhi and explanation appended to section 20 enlarges the scope of place of carrying business that a corporation shall be deemed to carry the business at its principal office and by reading clauses A and B of section 20 along with explanation, the defendant is deemed to carry its business at its principal office also, which is located in Delhi. From that point of view, Delhi court has also jurisdiction to try the suit.CS DJ No.206740/16 and 205612/16 Page No.11/ 21
M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
Accordingly, the second application fails. The issue on the point of jurisdiction stand determined and it would not require to frame any issue on the point of jurisdiction at later point of time....."
Hence, in view of the said observation, this issue was not as such required to be framed.
Additionally, on this aspect I may also place reliance upon the judgment of Hon'ble Delhi High Court in the case of Rameshwar Das Dwarka Das (P) Ltd. v. Deepak Puematics (P) Ltd., 147 (2008) DLT 624, wherein it was categorically held that in money suits the place where the defendant actually resides or carries on its business would be the place where a suit can be filed and in case of a corporate entity, the residence of the defendant would be the place where its registered office is situated. It was further held that the place where payments are made or are supposed to be made, would be the place where part cause of action would accrue.
Thus, as already noted earlier, since the registered office of the defendant is at Golf Links, Delhi and payments were also made at Delhi, clearly part cause of action has arisen at Delhi and this court has territorial jurisdiction to try & entertain the present suit.
Issue accordingly decided in favour of plaintiff.
ISSUE No.2 : Whether the suit is bad for nonjoinder of necessary parties?
The defendant in the preliminary objections taken in the written statement, has baldly averred that the suit is liable to be dismissed for non CS DJ No.206740/16 and 205612/16 Page No.12/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. joinder of necessary & proper party as the documents filed by the plaintiff shows that the same has been addressed to an independent entity which has not been made a party to the present proceedings. This, to my mind, is a vague averment. Nothing has been stated as to who else should have been the party necessary to be arrayed in the present suit.
The present suit is one for recovery of money for the work done under the contract Ex.PW1/B. Admittedly, the only parties to the said contract were the plaintiff and the defendant. Hence, only the said parties are the necessary & proper parties - the plaintiff and defendant herein. Thus, as no other party was required to be joined, it is held that the suit is not bad for nonjoinder of necessary parties.
Issue decided in favour of the plaintiff.
ISSUE No.3 : Whether the plaintiff is entitled to a decree of Rs.8,46,225/ (Rupees Eight Lacs Forty Six Thousand Two Hundred Twenty Five only) with pendentelite and future interest @12% per annum from the date of filing of suit till realization?
Coming to the core issue regarding the entitlement of the plaintiff for the sum claimed towards the work done by him at the defendant's site at NOIDA and which has been claimed by him vide two bills Ex.PW1/F & Ex.PW1/G. Now, the work done by the plaintiff was as per the work order Ex.PW1/B which is an admitted document. The quotation dated 01.09.2008 Ex.PW1/A formed the basis of the said work order/purchase order as in the purchase order it was specifically stated that all the terms & conditions of the quotation have CS DJ No.206740/16 and 205612/16 Page No.13/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. been accepted. The opening line of the work order reads as under:
"This is in reference to your quotation letter no:
JBACAS/JB/ES/09/1 dated: 01.09.2008, we have accepted all the term & condition as per your quotation so we are pleased to place order with you for..........."
The terms of payment was also clearly stated in the quotation Ex.PW1/A. The same are also extracted from Ex.PW1/A and are quoted hereinunder:
"Payment terms:
(i) 25% advance along with purchase order
(ii) 50% payment after the receipt of material at site.
(iii) 15% payment after completion of 30% job.
(iv) balance 10% after completion of the job."
Thus, as per the payment terms, 25% of the amount was to be paid as advance along with the purchase order and therefore, admittedly, a sum of Rs.1.85 lacs was paid as advance along with the purchase order. A further 50% payment which comes to roughly around Rs.3.25 lacs was to be made after receipt of material at the site.
Now, the plaintiff's case is that he had sent the material at the site and it was despatched by him on 05.11.2008 vide delivery challan no.590. The receipt of the material was though initially denied by the defendant in his pleadings but during crossexamination on this aspect, DW1 categorically admitted that the material/ goods were received at the site. However, DW1 added that the quantity of the same was inadequate. Now this version that the material supplied was short, has come up for the first time in the crossexamination as it CS DJ No.206740/16 and 205612/16 Page No.14/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. was never his case in the written statement. On further crossexamination on this aspect, DW1 admitted that they had not written any email or letter to the plaintiff or their representatives pointing out short receipt of material/ goods. Had the goods supplied been lesser than the requisite quantity or quality, the immediate reaction of the defendant would have been to point out the same before the start of the work and to communicate the same to the plaintiff. However, not only that there is no communication to this effect between the parties, there is not even any whisper of this story anywhere in the written statement. Thus, it is but apparent that this defence of there being a short supply of material, is absolutely a false one and coined later on to somehow present to the court of there being a fault on the part of the plaintiff.
To sum up, the material as per the work order was supplied at the work site. Necessarily, as per the agreed terms of payment, 50% of the amount of the work order was to be paid at that point of time which was admittedly not paid. Thus, it can be said that for nonpayment of the 50% of the amount of the work order at the time of receipt of goods, the defendant from that point of time itself was in breach of contract/ defaulted in making payment to the plaintiff.
Delving further with regard to the work done by the plaintiff. Again, the defendant's case is full of contradictions and improvements. Firstly, the defendant's case is that it was agreed between the parties that the work shall be completed by November, 2008. However, neither the same finds mention in the work order or quotation nor there is any subsequent writing viz., any letter, CS DJ No.206740/16 and 205612/16 Page No.15/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. email, etc, exchanged between the parties, specifying the time frame for completion of work. Thus, there is nothing on record to suggest that time till November, 2008 was fixed for completion of the work. Secondly, the story coinedup by the defendant that there were glaring defects in the work which rendered 3/4th of the floor unusable also has no legs to stand. Though in the written statement, defendant has categorically stated that when the possession of the work site was handed over to him by the plaintiff representing that the work was complete, on inspection he found glaring material and prominent defects in the work. The same were communicated and brought to the notice of the plaintiff. There has been exhaustive crossexamination of DW1 on the aspect of defect in work and in the said crossexamination, DW1 has categorically admitted that they had not written any letter to the plaintiff pointing out deficiency in work nor any letter was written to the plaintiff that though they had agreed to rectify the defect, they had not done so.
As per the defendant's own version, they had noticed the defects when they were given possession of the site i.e. in April, 2009 and it is also their case that the said defects were not cured/ removed by the plaintiff. Furthermore, as per their pleadings, the ground floor of the property which was given to the plaintiff during the work, was being used by them for their important client meetings, photo shoot, etc. and delay in completion of the work was heavily affecting them in their work. Despite the same, surprisingly they kept mum, did not write any email or letter to the plaintiff pointing them out the defect in the CS DJ No.206740/16 and 205612/16 Page No.16/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. work or calling upon them to remove the said defects. It has also come in cross examination that the defendant did not get the alleged defect rectified by someone else and that only 1/4th portion of the ground floor is being used even till date. Now, it is highly improbable that the defendant, who is a business man, would have left a big chunk of the floor i.e. 3/4th of the floor kept unused for almost 10 years now just on the pretext that the court case i.e. the present case regarding the defect, is pending.
Thus, considering the totality of circumstances, the story coined up by the defendant of there being substantial defects in the work, not rectified by the plaintiff & rendering a major portion of the site unusable and which is not substantiated by any document of the defendant and which has come up for the first time in response to the legal notice of demand dated 19.07.2010 served upon them by the plaintiff, I am of the opinion that this story has no legs to stand. In all probability it seems to have been framed to wriggle out of the liability of payment for the work done by the plaintiff. Admittedly, the work at the site was completed by the plaintiff. It is also not the case of the defendant that the plaintiff had abandoned the work in between or had left the work at the site incomplete. The two bills raised by the plaintiff are Ex.PW1/F & Ex.PW1/G. Additionally, on the aspect of these two bills, I may note that the bill Ex.PW1/F is dated 17.12.2008. A further payment of Rs.1.00 lac made by the defendant by way of cheque was on 18.12.2008 i.e. on the next day of submitting the bill which in all probability shows that the said payment was towards partpayment CS DJ No.206740/16 and 205612/16 Page No.17/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. of the bill Ex.PW1/F. In other words, the payment of Rs.1.00 lac made on 18.12.2008 also substantiates the issuance of the bill Ex.PW1/F. To sum up the discussion, the plaintiff having worked for the defendant as per the work order and being only partly paid for the same, is entitled for recovery of the remaining amount of the bill. The total of the two bills Ex.PW1/F & Ex.PW1/G for a sum of Rs.1,29,651/ and Rs.8,69,998/ respectively comes to Rs.9,99,649/. Also, no dispute has been raised by the defendant as to the measurement of the work done or the amount of the said bills. Admittedly, the defendant has paid Rs.2,85,000/ to the plaintiff vide two cheques. Adjusting the said amount from the bill amount (Rs.9,99,649/ less Rs.2,85,000/ = Rs.7,14,649/) a sum of Rs.7,14,649/ is due from the bill amount. The first legal notice for recovery was admittedly sent by the plaintiff on 19.07.2010. Thus, from the said date, the plaintiff is also held entitled to interest on the principal sum of Rs.7,14,649/ till recovery thereof. As no rate of interest on the unpaid bill amount has been fixed by the purchase order or the work order, I deem it appropriate to grant interest on the said amount @ 9% per annum.
Issue decided accordingly in favour of the plaintiff. ISSUE No.4 : Whether the counter claim is barred by time?
The plaintiff in response to the counterclaim has taken up preliminary objection that the counterclaim is barred by time as it was received by him on 26.04.2011 though the summons of the suit were received by the defendant on 24.12.2010.
The case of the defendant is that the cause of action for pressing the CS DJ No.206740/16 and 205612/16 Page No.18/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. counter claim arose in April, 2009 when the plaintiff handed over the possession of the ground floor to him and he noticed prominent defects in the work. Counter claim was filed along with the written statement on 28.04.2011. The limitation period for filing of a recovery suit is 3 years from the accrual of cause of action. The counterclaim has been preferred within time. Hence, the same is not barred by limitation.
Issue decided accordingly in favour of the defendant. ISSUE No.5 : Whether the counter claimant is guilty of breach of contract?
The plaintiff has averred that the defendant is guilty of breach of contract as he was required to release the payments as per schedule but he failed to do so. Now as already noted by me during discussion on issue no.3 that the defendant was supposed to release the payment as per the agreed terms i.e. 50% at the time of receipt of material at the site. In the said issue, I have already given a finding that the material was received at the site but the defendant admittedly did not make the payment of the 50% of the work order. Hence, it can be said that the defendant has been in breach of contract from that point of time.
Issue decided accordingly in favour of the plaintiff. ISSUE No.6 : Whether the counter claim has no cause of action?
and ISSUE No.7 : Whether the counter claimant is entitled to decree of Rs.9,52,466/ (Rupees Nine Lakhs Fifty Two Thousand Four Hundrred Sixty Six Only) with pendentelite and future interest @12% per annum till the realization of the amount?
CS DJ No.206740/16 and 205612/16 Page No.19/ 21M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.
The claim of Rs.9,52,466/ made by the defendant by way of the counter claim is precisely on three heads - refund of Rs.2.85 lacs given as advance to the plaintiff; Rs.5.00 lacs as damages and compensation for loss of goodwill, reputation, business, etc. and Rs.1,67,466/ on account of interest thereon.
As already held in issue no.3 that the plaintiff had done the work and is entitled to the remaining sum of the bill amount after adjusting the advance payment of Rs.2.85 lacs, obviously the question of refund of the advance paid does not arise as the said amount has already been adjusted in the bill amount.
Regarding the amount claimed towards damages and compensation, the defendant has miserably failed to prove that he has suffered any loss in terms of his business or goodwill. He has not led even an iota of evidence on that account. The only witness examined by the defendant i.e. DW1 is the Executive to the Director of the company. Thus, apart from the averment of there being damage to the reputation and goodwill of the defendant, there is nothing else on record - no documentary or even oral evidence. Mere self serving averments of there being damage caused, are not sufficient and the same needs to be categorically proved by leading cogent evidence. Thus, in the absence of any evidence, the defendant has failed to prove any damage caused to him.
Issues accordingly decided against the defendant.
9. Relief:
In view of my discussion on the aforesaid issues, the suit and counter CS DJ No.206740/16 and 205612/16 Page No.20/ 21 M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd. claim are disposed off in the following terms:
(i) the plaintiff is held entitled to recover a sum of Rs.7,14,649/ from the defendant along with interest @9% per annum from 19.07.2010 till recovery thereof. Plaintiff is also held entitled for the costs of the suit.
(ii) the counterclaim filed by the defendant is dismissed.
Decree sheet be prepared accordingly and file be consigned to record room after necessary compliance.
Announced in the Open Court (Shunali Gupta)
Dated: 11.09.2018 Addl. District Judge(06)
South Distt. Saket Courts,
Digitally signed
by SHUNALI
SHUNALI GUPTA New Delhi.
Date:
GUPTA 2018.09.12
15:52:48
+0530
CS DJ No.206740/16 and 205612/16 Page No.21/ 21
M/s. J.B.A. Concrete Solutions Pvt. Ltd. v. M/s. Cue Apparels Pvt. Ltd.