Adwave vs Union Of India And Ors.
1992 Latest Caselaw 685 Del

JUDGMENT

V.B. Bansal, J.

(1) The plaintiff has filed this Suit for recovery of Rs.l,33,089.00 with pendentelite interest @ 18 per cent per annum and future interest on the decretal amount @18 per cent per annum till realisation, with costs. Defendant No.1 is the Lt. Governor of the Union Territory of Delhi; Defendant No.2 is Delhi Administration, Union Territory of Delhi through its Chief Secretary; while the defendant No.3 is the Commissioner of Police, Delhi Administration, Union Territory of Delhi.

(2) The plaintiff is a partnership firm, registered under the Indian Partnership Act, carrying on business inter alia of construction of building and publicity agents. Ms. Komal G.B. Singh is one of the partners and Managing Partner of the plaintiff firm, who is competent and authorised to file the suit and sign and verify the pleadings.

(3) Briefly stated, the averments made in the plaint are:-

(4) That the work of construction of Delhi Police pavilion at Pragati Maidan, New Delhi, was entrusted to the plaintiff with a stipulation that this work was to be completed by 13.11.1981. There were three works regarding which offer was made by the plaintiff on 30th and 31st October, 198-1. One of the works was in respect of labour and raw material etc. for which the estimate for Rs.75,000.00 was given by the plaintiff, with a stipulation that 50 per cent of the payment would be made immediately; 25% of the balance on 10.11.1981 and the balance on 14.11.1981. The proposal was discussed with the concerned officers and the amount of estimate was reduced by the plaintiff to a sum of Rs.70,700.00

(5) The second estimate for creative work was for a sum of Rs.73,000.00 , submitted by the plaintiff to the Commissioner of Police on 31.10.1981. This amount, on negotiations, was reduced to a sum of Rs. 63,000.00 by the plaintiff. One of the conditions by the plaintiff was that 50 per cent of the payment would be made immediately; 25percentofthe balance on 10.11.1981; and the balance on 14.11.1981. There was a third estimate for production of A.V. and hire equipment for the Delhi Police pavilion at the India International Trade Fair, 1981, for a sum of Rs.48,300/ - made on 30.10.1981 by the plaintiff. It was also a condition in this estimate that . 50 per cent of the payment would be made immediately in advance; while 25 per cent of the balance on 10.11.1981 and the balance on 14.11.1981. The matter was discussed and the amount of estimate was reduced to Rs.41,300.00 .

(6) The work was started by the plaintiff after negotiations, though letter dated 12.11.1981 was issued by the Commissioner of Police, Delhi, under the signatures of Deputy Commissioner of Police, Headquarters-I, Delhi, to the effect that the job was allotted to the plaintiff in terms of the estimates, revised by the plaintiff. It was further provided in the letter that the work should be executed in accordance with the specifications and designs and the work was to be completed by 13.11.1981.

(7) It has been claimed by the plaintiff that besides the work referred to in the three estimates the plaintiff was required to any out additional work of the value of Rs.28,089.00 , as per the details mentioned in para 3 (wrongly shown as para 4) of the plaint. It has been pleaded by the plaintiff that the work was completed as per the Agreement by due date for the exhibition and a sum of Rs.50,000.00 was received by the plaintiff on 6.11.1981 and another sum of Rs.20,000.00 on 9.11.1981. It has also been pleaded that the balance amount of Rs.l,05,000.00 was due to the plaintiff on 14.11.1981, which has not been paid out of the agreed contract and another sum of Rs.28,089.00 was due for the additional work. It has also been claimed that notice under Section 80 of the civil Procedure Code was issued to the defendants, making a demand of the amount of Rs.1,33,089/00, which has not been paid and, so, this suit.

(8) The defendants have contested this suit by way of filing a written statement. It has been pleaded by the defendants (hat it was not known to the defendants whether the plaintiff is a partnership concern and Ms. Komal G.B. Singh is competent to sign and very the suit. It was admitted that the work with regard to the Police Pavilion at the India International Trade Fair, 1981, was awarded to the plaintiff and the fair was to commence from 14.11.1981 till 4.12.1981. It has been admitted that after inviting tenders, negotiations took place with the plaintiff and the work for a total sum of Rs.l,75,000.00 was awarded to the plaintiff. It has also been claimed that to facilitate the start of the work immediately by the plaintiff, a sum of Rs.50,000.00 was paid on 6.11.1981 and another sum of Rs.20,000.00 was paid on 9.11.1981. It has also been claimed that instead of completing the work, it was left in between on 12.11.1981. Further averments made in the written statement have been that on account of the work having been left incomplete by the plaintiff, the inauguration of the Police Pavilion had to be postponed to 16.11.1981 and the work was got completed with great difficulty from another firm, viz. M/s. Architects Forum. It has also been pleaded that no additional work was either assigned or carried out by the plaintiff. It is, in these circumstances, that the claim of the defendant that nothing is due to the plaintiff and so a prayer has been made that the suit may be dismissed.

(9) In the replication filed by the plaintiff, averments made in the written statement were reiterated and the facts pleaded in the written statement were denied.

(10) The pleadings gave rise to the following issues, framed on 6.2.1986:- 1. Whether the plaintiff is a registered partnership firm and Ms. Komal G.B. Singh is a registered partner competent to file the present suit? OPP. 2. Whether the plaintiff executed the total work of construction of Delhi Police Pavilion? It if, what was the extent of the work not completed? Op Parties. 3. Whether the defendant asked the plaintiff to execute additional work referred to in para 3 of the plaint? OPP. 4. If issue No.3 is held in favor of the plaintiff, to what amount is the plaintiff entitled for the additional work? OPP. 5. To what amount is the plaintiff entitled? OPP. 6. Whether the plaintiff is entitled to any interest, if so at what rate? OPP. 7. Relief.

(11) In support of its case the plaintiff examined Shri Rajiv Mehrotra, PW/1; Mr. Siddharth Basu, PW/3; and Ms. Komal G.B. Singh, partner of the plaintiff firm appeared as PW/2. Defendants have examined Mr. Maxwell Pereira, DW/1; Mr. M.B. Kaushal, DW/2 and Mr. Ravinder Chaudhury,DW/3.

(12) I have heard Shri S.L.Watel, learned counsel for the plaintiff and Ms. Avinish Ahlawat, learned counsel for the defendants, and have also gone through the records. My findings on the issues are as follows:- Issue No. 1:-

(13) Learned counsel for the plaintiff has submitted that the plaintiff is a registered partnership concern in which Ms. Komal G.B. Singh is one of the partners, competent to file this Suit. He has referred to the statement of Ms. Komal G.B. Singh, PW/ 2, who has claimed that the plaintiff is a registered partnership firm and she is one of the registered partners of the firm. She has proved Ex.PW.2/l, a photocopy of the Certificate of Registration; and Ex.PW.2/2a photostat copy of the Certificate issued by the Registrar of Firms. The original of these two exhibits were brought by the witness in Court at the time "he was examined. There is nothing in the cross examination of this witness to challenge these averments of Ms. Komal G.B. Singh. A perusal of these documents shows that there are two partners of the plaintiff, viz. Ms. Sunita Khanna and Ms. Komal G.B. Singh. Learned counsel for the defendants could not point out anything on record to show that the plaintiff was not a registered partnership firm and Ms. Komal G.B. Singh was not competent to file this Suit. This issue is, therefore, decided in favor of the plaintiff. Issue No.2:-

(14) Admittedly, there were three estimates given by the plaintiff in respect of three works and the work was awarded to the plaintiff regarding all the three works, as is clear from letter Exhibit P/1. This letter, in fact, is in approval of the there estimates, viz. Exhibits D/1, D/2 and D/3 given by the plaintiff to the defendant in pursuance of their enquiry. The total value of these estimates comes to Rs.l,75,000/ The claim of the plaintiff has been that the work was started on or about 1.11.1981 and it was completed on 13.11.1981. Learned counsel for the plaintiff has submitted that the information about the work having been completed was given to the Commissioner of Police on 13.11.1981 when an enquiry was made to give the name of the representative to whom the Pavilion and the equipment was to be banded over. He has also submitted that a reply dated 13.11.1981 was received by the plaintiff from the office of the Commissioner of Police to the effect that the Pavilion and the equipment may be banded over to Mr. Maxwell Pereira, D.C.P. Delhi. It has also been submitted that the balance of the amount was not paid to the plaintiff. He has also submitted that the question as to whether the Pavilion was to be inaugurated on 14.11.1981 or on any other date and whether there was any delay in the inauguration of the Pavilion are not material in view of the fact that the plaintiff had completed the work well-n-time(well in time?). Learned counsel for the defendants has, on the other band, submitted that Ms. Komal G.B. Singh wanted payments to be made on 12.11.1981 without completing the work and left the work incomplete. He has also submitted that the defendants had been put to great difficulty and they could get the work completed only through Mr. Ravinder Chaudhury, who was carrying out-the work for and on behalf of the plaintiff. It has also been submitted that the plaintiff is not entitled to any other amount, having already received more payment as compared to the work carried out by the plaintiff.

(15) I would discuss the evidence on this point separately. First of all, I would take up the case with regard to the work of labour and raw material for a sum of Rs.70,700.00 ; and creative work, including architect and designers fee, etc. for Rs.63,000.00 . Ms. Komal G.B. Singh, PW/2, has made a categorical statement that this work was completed on 12.11.1981 and that bills were sent to the defendants and in spite of the demand the balance amount has not been paid. It has also been claimed that letters were written to the defendants to pay the balance amount and even to preserve the work carried out by the plaintiff, but to no effect. Ex.P/14 is the letter dated 21.11.1981 sent by the plaintiff to the Commissioner of Police, receipt of which has been admitted by the defendants. A perusal of this letter shows that the plaintiff had claimed having completed the two works and a demand was made of the balance amount. Bills for a sum of Rs.35,700.00 and Rs.28,000.00 were also sent Along with this letter after giving adjustment for the amount received in advance. There has not been any reply to this letter. It has been admitted by Shri M.B. Kaushal, DW/2, that the plaintiff tried to hand-over incomplete work, taking the plea that the work has been completed on 12.11.1981. It has also been claimed that Ms. Komal G.B. Singh was insisting to get the balance 50 per cent immediately when she was told that it would be paid after the completion of work on account of which the work was stopped. He has also claimed that when the work was stopped by the plaintiff, Mr. Ravinder Chaudhury, DW/3, was asked to complete the work and about 100 officials were deputed to help Mr. Ravinder Chaudhury in completing the construction of the Pavilion. It has also been claimed that a report was prepared by a Committee of Shri Maxwell Pereira, Sbri B.L. Anand and Shri Santosh Kumar about the work done by the plaintiff and it was approved by him. According to him, this report was prepared after the bill was submitted by M/s.Architects Forum of Mr. Ravinder Chaudhury. According to Mr. Maxwell Pereira, DW/1, this report of the Committee was approved by Shri M.B. Kaushal, DW/2, on 9.7.1982.

(16) The question for consideration is as to whether there is material on record to indicate that the plaintiff had left the work incomplete and bow much work was carried out and how much was got completed by the defendants through the agency of Mr. Ravinder Chaudhury.

(17) EX.DW.1/1 is the report of the Committee appointed to assess the work done by M/s.Architects Forum for the Delhi Police Pavilion after the original contractor, M/s. Adwave, had left the work midway. This is a copy indicating that the report was of S/s. Maxwell Pereira, President, B.L. Anand and Santosh Kumar, Members, approved by Shri M.B. Kaushal, DW/2. There is no date on this report, though Shri Maxwell Pereira, DW/1, has claimed that it was approved by Shri M.B. Kaushal on 9.7.1982. Learned counsel for the defendants was asked to point out the work carried out by the plaintiff and the work which was got complete through Mr. Ravinder Chaudhury, since the claim of the plaintiff had been that they bad completed the work within the stipulated time. Reliance has been placed by learned counsel for the defendants on document Ex.DW.1/2. This is a letter by Mr. Ravinder Chaudhury for Architects Forum, addressed to Shri B.L. Anand, Manager, Police Pavilion, India International Trade Fair, 1981, Pragati Maidan, New Delhi. A perusal of this document shows that it was typed on 2.4.1982, but the date was then scored and the date written in ink as July 8, 1982. One paragraph of this letter reads as under:- "IT is more than seven months that the work was completed and we have not received our payment. We are facing numerous problems as sub-contractor and suppliers are after their payments."

(18) A specific question was put to the learned counsel for the defendants if it could be pointed out as to how this time of seven months is mentioned, which actually would be about five months if the letter was typed on 2.4.1982. Mr. Ravinder Chaudhury, DW/3, was asked to given explanation about this variation, which be was not able to explain. There is no doubt that the copies of the bills attached with this letter are dated 5.12.81 and 17.11.1981. No record has been produced in Court to indicate that any such record was prepared on the dates mentioned in the document. Even otherwise, the bill dated 17.11.1981 is after the completion of the work but all the relevant record has not been produced to indicate as to how much work was done by Mr. Ravinder Chaudhury for the plaintiff and how much was done by Mr. Ravinder Chaudhury at the instance of the Commissioner of Police.

(19) There was a specific question to Mr. Ravinder Chaudhury during crossexamination and it would be appropriate to quote the said question and answer to it:- Q. Out of this work, bow much and what work was executed by you at the request of the police authorities? A. It is difficult to bifurcate the two items exactly. I could give the rough estimate, i.e. approximately 50% each.

(20) During cross-examination Mr. Ravinder Chaudhury was shown document Ex.D/l, D/2 and D/3 and he claimed that these documents had nothing to do with the job that was assigned to him and that he had carried out the job of display boxes, which is not contained in documents Ex.D/l, D/2 and D/3. In these circumstances, it may be that Mr. Ravinder Chaudhury was asked to do some additional work not concerned with the work assigned to the plaintiff. Admittedly, the defendants took no steps to get the work carried out by the plaintiff assessed before Mr. Ravinder Chaudhury was asked to carry out further work. Even the photographs of the work carried out by the plaintiff were not taken.

(21) EX. PW/16 is the letter dated 2.12.1981, which was written by the plaintiff to the Commissioner of Police, in which a prayer was made to preserve the work carried out by the plaintiff till the accounts were settled and details of the work carried out by the plaintiff were mentioned therein. No action was taken by the defendants on this letter. Another letter dated 17.12.1981, Exhibit P/17, was written to the Commissioner of Police, asking for payment of the balance amount but to no effect. The plea of the defendants had been that since the work was left incomplete, the case was got registered against the plaintiff on 17.11.1981 for the offence under Section 406/420, Ipc, in which averments were made that the work was left incomplete and Ms. Komal G.B. Singh had not only misappropriated the photographs and equipment, but also scuttled a huge amount by deceitful means. It has, thus, been submitted that it was made clear by the defendants, as early as 17.11.1981 that the work was not completed. It has, however, not been disputed that Ms. Komal G.B. Singh obtained anticipatory bail in the said F.I.R. and the challan was not Filed in Court.

(22) The plea of the defendants has been that it was on the legal advice that it was a civil matter and it was on that account that the challan could not be filed. However, the fact remains that as against the claim of the plaintiff that the work in respect of items 1 & 2 was completed, there is no cogent and reliable material produced by the defendants to indicate that the work was not completed and how much work was left incomplete. It is also pertinent to note that there was a suggestion to Mr. Ravinder Chaudhury, DW/3, that he was to be paid a total sum 'of Rs.50,000.00 for carrying out the work envisaged in item No.1 and part of the work envisaged by item No.2 of Exhibit P/1 to which the answer was that he did not remember exactly. There have been clear suggestions that he carried out the work as assigned to him by the plaintiff and it appears that he did some additional work for the defendants. It is, thus, clear that the evidence on record proves that the work in respect of items 1 & 2 was completed by the plaintiff.

(23) As regards work of item No.3, i.e. audio-visual presentation for a sum of Rs.41,300.00 it is the admitted case of the parties that the work carried out by the plaintiff in this regard was not handed-over to the defendants. Ex.P/14 is the letter dated 21.11.1981 addressed by Ms. Komal G.B. Singh, Managing Partner of the plaintiff to Commissioner of Police, Delhi. A perusal of this letter indicates that the balance amount in respect of the two items was claimed and with regard to the job in respect of item No.3, i.e. audio-visual, it was mentioned that the audio-visual was kept ready for Shri M.B.Kaushal at 11.00 pm. on 30.11.1981 with a prior appointment, but he was unable to make it and specifically they were informed that it was not required and in these circumstances, the plaintiff did not want to claim any amount regarding this item. While appearing in the witness box, PW/2 Ms. Komal G.B. Singh has claimed that the audio-visual work was to be screened in her studio on 13.11.1981, when Mr. M.B. Kaushal was supposed to come there at 10.00 pm. but he did not turn up. It has further been claimed that on 14.11.1981 she again contacted Mr. Kaushal, who assured her that he would view the audio-visual and thereafter the entire equipment could be shifted to the site and that even on 14.11.1981

(24) Mr. Kaushal did not come and that on 15.11.1981 Mr. Anand, Manager of the Pavilion, came to her office and took away all equipment, and when she went to the pavilion, nobody was prepared to give her a receipt for the equipment, which was worth about Rs.2.00 lakhs to Rs.2.50 lakhs and, in these circumstances, she brought back the equipment and that she had paid hire charged for 14 days for this equipment.

(25) Mr. M.B. Kaushal, DW/2, has denied having, at any time, agreed to see audio- visual by the plaintiff and there is no mention about these details in the pleadings. In these circumstances, it cannot be said that the plaintiff had made a request to Mr. Kaushal on 13 or 14th November, 1981 to see the audio-visual. It is the admitted case of the plaintiff that the audio-visual work prepared by the plaintiff was never handed-over to the defendants. There is no doubt that in the examination- in-chief PW/2 has claimed that all the slides and negatives were still in her possession and so also the audio-visual tapes in Hindi and English, which were to be played Along with the slides in the pavilion. It was also claimed that all this material was brought in Court. However, there is no detailed information about the number of slides/tapes. It cannot be said as to bow much work was completed and when. As already referred to the plaintiff had written a letter Ex.P/16, not claiming anything in respect of this- work. Considering all this material, I am clearly of the view that the plaintiff is not entitled to claim any amount in respect of the third item.

(26) In these circumstances, I hold that the plaintiff has proved on record that the work in respect of items 1 & 2 was completed by the plaintiff in time, but the plaintiff is not entitled to claim any amount in respect of item No.3. Issue Nos. 3 & 4:- (Both these issues are taken together as they are inter-connected.)

(27) 27 Learned counsel for the plaintiff has submitted that over and above the work awarded to the plaintiff, the defendants had asked for the additional work worth Rs.28,089.00, as per the details mentioned in para 3 (which has been wrongly shown as para No.4) of the plaint. Reliance in this regard has been placed on the statement of Ms. Komal G.B. Singh, PW/2, and all that has been claimed by Ms. Komal G.B. Singh is that she had done some additional work, as mentioned in para 3 of the plaint. She has also claimed that the defendants wanted the plaintiff to make some huge display boxes for displaying arms, for which the plaintiff was not prepared and that it was on this account that the defendants lodged an F.I.R. against her. Learned counsel for the defendants has, however, submitted that no additional work was carried out by the plaintiff and reliance in this regard has been placed on the statements of DW/1 and DW/2. The plaintiff has not produced any evidence in proof of having done this additional work and, in these circumstances, I hold that the plaintiff has not been able to prove these issues, which stand decided against the plaintiff. Issue No.5:-

(28) Plaintiff was to get a sum of Rs.70,700.00 for item No. 1; and Rs.63,000.00 for item No.2. A sum of Rs.70,000.00 has already been paid to the plaintiff and, in this way, the balance due to the plaintiff comes to Rs.63,700.00 , which amount has not been paid to the plaintiff. Thus, I hold that the plaintiff is entitled to recover this amount of Rs.63,700.00 . Issue No.6:-

(29) The plaintiff has claimed interest @18 per cent per annum from the date of the suit till realisation. Admittedly, there was no settlement with regard to the payment of interest and, if. so, at what rate. However, the fact remains that it was a commercial transaction and the amount has not been paid by the defendants in spite of demand having been made by the plaintiff. Considering all the facts, I am clearly of the view that interest @ 12 per cent per annum would be the reasonable rate of interest, which the plaintiff should get. I decide this issue accordingly. Issue No.7:-

(30) In view of my aforesaid findings, the suit if the plaintiff is decree for a sum of Rs.63,700.00 with proportionate costs. The plaintiff shall also be entitled to interest @12 per cent per annum from the date of the suit till realisation.