* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 27th October, 2014
+ I.A. Nos.6741/2013, 6743/2013 & 6768/2013 in
CS(OS) No.95/2005
M/S INPLAN ..... Plaintiff
Through Mr.Vivekanand, Adv.
versus
BANARAS MANUFACTURERS PVT. LTD. ..... Defendant
Through Mr.Keshav Dayal, Sr. Adv. with
Mr.Varun Kumar, Adv.
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiff filed the suit for recovery of Rs.34,71,803/- against the defendant. It is the case of the plaintiff that the defendant had invited tenders at Delhi for the construction of a factory at Plot No.36, Sector-31, Greater Noida. In response to the invitation of the tender, the plaintiff submitted tender from its registered office at Delhi to the office of the defendant at Delhi vide letter dated 22nd December, 2000. The tender of the plaintiff was accepted who was awarded the work by the defendant vide Work Order dated 12th May, 2001. After awarding of the work, the plaintiff had made all the arrangements and kept on submitting the bills from time to time, the details of which are mentioned in paras 5 to 8 of the plaint.
CS(OS) No.95/2005 Page 1 of 72. It is alleged that the defendant committed a breach of the contract by not making the payment as per the schedule given in Annexure-I to the Work Order dated 12th May, 2001. The said information was given to the defendant by letter dated 12th July, 2001. It was informed by the plaintiff to the defendant that because of delay in payments, the progress of the work was suffering which would further result into losses by way of additional expenses to the plaintiff due to prolongation on account of increased rates, overhead expenses, wastage of labour and materials. Thus, the defendant was called upon to pay the amounts of the pending bills with interest @ 21% per annum to mitigate the losses and to enable the plaintiff to complete the work at the amended rates. Despite of repeated reminders, the defendant neither improved the supply of materials nor made the payment for the work done. Various correspondences were exchanged between the parties in this regard where the plaintiff was insisting for balance amount and the defendant did not make the payments as asked by the plaintiff. Therefore, the suit for recovery was filed.
3. Issues in the above said matter were framed on 9th March, 2007. The matter was put up before the Joint Registrar for cross- examination of the plaintiff's witness. The plaintiff's evidence was concluded on 4th September, 2008. Subsequently, the defendant filed an application being I.A. No.12934/2008 under Order VIII (1-A)(3) read with Section 151 CPC for filing the additional documents. The said documents were taken on record subject to CS(OS) No.95/2005 Page 2 of 7 cost and the matter was put up for cross-examination of the defendant's witnesses. DW-1 was examined and discharged. The defendant was given last opportunity to conclude the remaining evidence on 17th July, 2013. In the meanwhile, three applications were filed by the defendant, the details of which are given as under:-
(i) I.A. No.6741/2013 (under Order VI Rule 17 CPC for amendment in the written statement),
(ii) I.A. No.6743/2013 (under Section 151 CPC for filing of additional evidence), and
(iii) I.A. No.6768/2013 (under Order VIII Rule 1-A (3) CPC for filing of additional documents)
4. Firstly, I shall take up the application being I.A. No.6741/2013 filed by the defendant under Order VI Rule 17 CPC for amendment in the written statement seeking to amend para 31-B and the prayer clause of the written statement in terms of para 14 of the application. It has been stated that the plot in question had to be constructed by 31st August, 2001. However, subsequent extensions had been granted to the defendant by Greater Noida Authority. The said Authority vide its letter No.Udyog/2013/648, dated 8th February, 2013 granted post-facto sanction for extension of construction of the plot upto 31st December, 2004 subject to deposit of a sum of Rs.11.85 lacs. The defendant by way of an amendment in the written statement in effect seeks to include an amount of penalty of Rs.11.85 lacs that it allegedly had to pay to Greater Noida Authority in the total amount of loss incurred by the defendant because of the plaintiff. It has been stated that due to non-cooperative and callous attitude of CS(OS) No.95/2005 Page 3 of 7 the plaintiff, the construction of the plot in question could not be completed in time and could be completed only by September, 2004 for which the said penalty amount had to be paid by the defendant. Now, the total amount that the defendant claims against the plaintiff is Rs.81.89 lacs.
5. In reply allegations of the plaintiff against the defendant are that the plaintiff was thrown out of the plot in question by the defendant in the first week of November, 2003. The alleged balance work was allegedly got completed by the defendant in September, 2004 which was within the knowledge of the defendant who filed the written statement on 31st January, 2006. The evidence of the plaintiff was completed on 4th September, 2008. The evidence of DW-1 was closed on 26th February, 2013.
There is force in the submission of the learned counsel for the plaintiff that all these years from 2003 to 18th April, 2013, there were no allegations of the defendant about any post-facto extension of time had been applied or any penalty was ever imposed or likely to be imposed by Greater Noida Authority as alleged now by the defendant.
The trial had begun in 2007. It appears to the Court that the present application has been filed by the defendant in order to delay the further proceedings of the suit. In the written statement, no claim was made by the defendant for imposition of any penalty payable to the Greater Noida Authority. The said fact ought to have been brought on record by the defendant at the time of filing the written CS(OS) No.95/2005 Page 4 of 7 statement or before recording the evidence of the parties. The amendment sought by the defendant is barred under the proviso of Order VI Rule 17 CPC. Thus, the same cannot be allowed. The application is accordingly dismissed. The defendant is at liberty to raise such claim by taking an independent action if permissible in law as the present suit is merely a suit for recovery of amount against the defendant.
6. Now, I shall take up the second application, i.e. I.A. No.6743/2013 under Section 151 CPC which has been filed by the defendant for filing of additional evidence i.e. a Supplementary Affidavit of Sh.Raj Kumar Gupta to testify the receipt of letter No.Udyog/2013/648, dated 8th February, 2013 issued by the Greater Noida Authority and deposit of the Cheque of Rs.11,85,600/-. It has been stated that the said Supplementary Affidavit will assist the Court in determining the dispute in question.
7. Mr.Viveknand, learned counsel for the plaintiff has argued that the application is wholly a misuse and abuse to the process of law and an attempt to fill in lacuna in its case by the defendant. He stated that the amount of penalty if deposited by the defendant with the Greater Noida Authority should not be put on the plaintiff. He submits that the said letter has been procured by the defendant which is a self-serving document sought to be placed on record and without any pleadings in this regard. The plaintiff was never non-cooperative nor of a callous attitude. The said amount could not be recovered by the CS(OS) No.95/2005 Page 5 of 7 defendant from the plaintiff in the present suit which has been filed by the plaintiff for recovery of the amount due.
8. The case is at the stage of defendant's evidence since 4 th September, 2008 and even after the expiry of six years, the defendant has not concluded its evidence. The evidence of DW-1 has already been concluded on 26th February, 2013. It is evident that the defendant now wishes to file a fresh supplementary affidavit on the basis of receipt of letter dated 8th February, 2013 issued by the Greater Noida Authority. There are no pleadings in the plaint as well as in the written statement in this regard. The application is accordingly dismissed. However, it is clarified that the defendant is not precluded to raise its claim in case any amount is recoverable in law.
9. The last application i.e. I.A. No. 6768/2013 under Order VIII Rule 1-A (3) read with Section 151 CPC which is filed for filing of additional documents by the defendant, stating that he intends to file the Structural Drawing in respect of the plot that he could only locate after a thorough search of its office after the hearing of cross- examination of plaintiff's counsel on 26th February, 2013. It has been stated that this Court has power under Order 8(1-A)(3) CPC and Section 151 CPC to permit filing of the additional document(s) in order to meet the ends of justice.
10. The alleged structural drawing now sought to be placed on record is after the expiry of more than 9 years. Admittedly, the plaintiff was not in the picture since November, 2013 who has CS(OS) No.95/2005 Page 6 of 7 specifically made his statement that the said drawings were not received or handed over to the plaintiff by the defendant. In the cross-examination of DW-1, the case of the defendant is that the sanctioned plans were itself the structural drawings. The said drawings are now sought to be filed on record after 7 years of the filing of the written statement and also after the completion of the evidence of the plaintiff and DW-1. In case the said drawings were with the defendant, the same ought to have been filed at the earlier stage. DW-1's main evidence of the defendant is already concluded except one remaining witness (as per the list of witnesses) is to be examined. The matter is almost at the final stage. The additional documents cannot be allowed to be produced once the trial has begun. The said document was in the power and possession of the defendant, as nothing contrary is shown that the said document has for the first time come to the knowledge of the defendant. Therefore, it could not be filed earlier. It appears to the Court that the defendant is delaying the matter on one reason or the other. The application therefore, is hereby dismissed.
CS(OS) No.95/2005 List the matter before the Joint Registrar on 8th December, 2014 for defendant's evidence.
(MANMOHAN SINGH) JUDGE OCTOBER 27, 2014 CS(OS) No.95/2005 Page 7 of 7