S.M.Malhotra vs M/S. Blue Star
2008 Latest Caselaw 1454 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    R.F.A. No. 288/2006

      S.M.MALHOTRA                       ........Appellant
              Through: Mr. Vikas Dutta, Advocate

                           VERSUS

     M/S. BLUE STAR                     ........ Respondent
               Through: Ms. Manjula Gandhi, Advocate

                         RESERVED ON:
                          20.08.2008

                        DATE OF DECISION:
%                          27.08.2008

     CORAM:
     HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
     HON'BLE MR. JUSTICE SUNIL GAUR


1.   Whether reporters of local papers may be allowed
     to see the judgment?

2.   To be referred to the Reporter or not?

3.   Whether judgment should be reported in Digest?

:    PRADEEP NANDRAJOG, J.

1. The plaintiff is in appeal. He sought recovery of

Rs.5,69,290.35 against the defendant. Claim was predicated

on 3 contracts awarded by the defendant to the plaintiff under

work orders; work order No.2351 dated 26.3.1996, Ex.PW-1/1,

work order No.2105 dated 4.7.1996, EX.PW-1/2 and work order

No.1768 dated 16.8.1996, Ex.PW-1/D-1.

2. It may be noted at the outset that the work order

Ex.PW-1/D-1 was in supercession of the work order Ex.PW-1/2.

3. Plaintiff's case as pleaded in the plaint was that

under work order Ex.PW-1/1 he was to execute thermal

insulation work after defendant had executed ducting work

awarded to it by NPC. That basic material like polystyrene and

fiber glass had to be supplied by the defendant. He alleged

that the work of insulation which had to be completed by

28.2.1997 could not be completed for two reasons. Firstly, the

polystyrene material supplied by the defendant was rejected

by NPC, the party who had contracted the work with the

defendant, and secondly due to defendant not completing

ducting work. It was further pleaded that vide work order

Ex.PW-1/2 defendant awarded balance ducting work to the

plaintiff. It was alleged that to execute the work pertaining to

the work order Ex.PW-1/2 the defendant agreed to provide

accommodation, free of cost, to the workers to be deployed at

site by the plaintiff. It was further alleged that on 16.8.1996,

in supercession of the work order Ex.PW-1/2, work order

Ex.PW-1/D-1 was awarded.

4. Claim was predicated on alleged unpaid bills stating

that over and above the works executed at the contract rate,

the plaintiff had to rectify earlier ducting work and that for long

durations labour deployed at the site by the plaintiff remained

idle for which plaintiff claimed recompense. It was further

stated that the defendant had to arrange for "A-Grade

Welder". None was provided. It was further pleaded that while

settling the bills submitted by the plaintiff, the defendant had

illegally deducted alleged room rent for the labour stationed at

the site by the plaintiff and also for alleged supply of ancillary

materials.

5. The defendant denied any liability to pay.

According to the defendant, far from any amount payable to

the plaintiff, the defendant was entitled to a refund of

Rs.14,104/-. The defendant denied delay on its part and also

denied that it was obliged to provide, free of cost,

accommodation to the labour of the plaintiff.

6. Bar of limitation, lack of territorial jurisdiction and

non-joinder of a necessary party; requiring suit to be dismissed

were also pleaded as technical defences.

7. The plaintiff succeeded on the technical defences

raised by the defendant. The suit was held to be within

limitation. The Court found that it had territorial jurisdiction. It

was held that no necessary party was omitted to be impleaded

as a defendant.

8. Since the defendant has not filed any cross appeal

or cross objections pertaining to issues decided against the

defendant we need not bother ourselves with the facts

constituting the 3 technical defences and hence we

concentrate on the main issue debated between the parties;

namely, whether the plaintiff was entitled to a decree in sum of

Rs.5,69,290.35 or whether it had received excess payment in

sum of Rs.14,104/-.

9. At this stage, we may note that though having

pleaded that it had paid Rs.14,104/- in excess to the plaintiff

the defendant did not seek recovery thereof by way of a

counter claim.

10. Plaintiff examined himself as his only witness. The

defendant examined its Senior Manager (Commercial)

Sh.T.K.S.Kuti as its only witness.

11. Apart from proving the 3 work orders on which we

note parties were not at variance the plaintiff reiterated the

case pleaded in the plaint. The plaintiff proved Ex.PW-1/6, a

bill raised upon the defendant on 31.7.1996 raising a claim for

idle labour in sum of Rs.27,900/-. Plaintiff also proved Ex.PW-

1/7, a letter dated 15.7.1996 written by the defendant

acknowledging not meeting the commitment of the defendant.

The plaintiff also proved Ex.PW-1/9, being defendant's letter

acknowledging that stationing "A Grade Welder" was a

problem at site.

12. Various other communications addressed between

the parties were proved at the trial which we are not noting for

the reason, while arguing the appeal learned counsel for the

appellant urged submissions predicated on Ex.PW-1/6, Ex.PW-

1/7and Ex.PW-1/9.

13. As against the aforesaid documentary evidence of

the plaintiff, defendant hinged its case on Ex.PW-1/D-3, Ex.PW-

1/D-4 and Ex.PW-1/D-5.

14. Ex.PW-1/D-3 is a communication dated 28.11.1996

from the defendant to the plaintiff enclosing therewith a

statement of the running bills received by the defendant from

the plaintiff with defendant's remarks thereon; the document

terminates with the defendant's certification of the bills raised

by the plaintiff as settled for payment by the defendant and

money released. Ex.PW-1/D-4 is defendant's lettter dated

4.12.1996 addressed to the plaintiff. It refers to the bills

received from the plaintiff post 28.11.1996. It records the

defendant's version of what was payable to the plaintiff under

the bills. It refers to excess payments raised by the plaintiff. It

refers to the fact that the plaintiff did not execute certain

works, which were claimed to have been executed by the

defendant at the risk and cost of the plaintiff.

15. Ex.PW-1/D-5 is defendant's letter dated 26.5.1997

addressed to the plaintiff refuting the claim for any further

payment and requesting plaintiff to refund Rs.14,104/-.

16. The defendant's witness gave evidence in harmony

with the defence set up.

17. Noting that in the oral testimony of the two

witnesses i.e. the witness of the plaintiff and the defendant,

respective versions were given, the Learned Trial Judge held

against the plaintiff for the reason there was no documentary

evidence to show that the plaintiff refuted Ex.PW-1/D-3, Ex.PW-

1/D-4 and Ex.PW-1/D-5. The findings returned by the learned

Trial Judge are as under:-

"16. On the other hand, it is argued by ld counsel for the defendant that Sh.Rajput was representative of the plaintiff working at the site at Banglore with whom matter was sorted out. It is argued that subsequently plaintiff also admitted that he had received statement of the payments made to the plaintiff Ex.PW-1/D-3, PW-1/D-4 and D- 5 but he did not prefer to give reply thereto which is a clear proof that nothing was due and payable to the plaintiff. It is argued that plaintiff has not denied that Ex.PW-1/D-4 and D-5 were received by him and further has admitted that it preferred to give no reply to these letters, hence, no amount is due and payable.

17. It is true that plaintiff has proved on record that orders Ex.PW-1/1 and 1/2 were given to him and that he submitted bills Ex.PW-1/6, 1/7. However, the fact remains that defendant had sent a statement of account regarding claim of the plaintiff and payments made to him. It has been proved as Ex.PW-1/D-3. It is dated 28.11.96. In this document, defendant has given details of

various payments made to the plaintiff. Similarly defendant wrote the plaintiff Ex.PW1/D-4 dated 4.12.96. In Ex. PW1/D-4, it has been mentioned by the defendant that it had sent final bill against work order No.2351 and it was also mentioned that various payments had been made to the plaintiff. Defendant had also requested the plaintiff to settle the payment on receipt of which hammer drilling machines will be returned. Again, defendant wrote another letter Ex.PW1/D-5 which is dated 26.5.97. In this letter also, various payments made have been mentioned. It was also mentioned by the defendant that when statement of account was drawn it was found that an excess payment of Rs.14104/- was made to the plaintiff and it was requested that plaintiff should refund the same. In Ex.PW1/D-3 defendant had made references to the payments made in respect of bill No.2351. In Ex.PW1/D-4 there is a reference of work order No.2351 and the payments made. It was also mentioned in this letter that final bill in respect of work orders No.2351 was received. The defendant pointed out that it had already paid Rs.14104 in excess to the plaintiff in respect of these works and had requested the plaintiff to refund the same. In letter Ex.PW1/D-5 there is reference to work order No.2105. In this letter, it has been mentioned that the representative of the plaintiff Mr.Rajput was requested to make a final bill for the work carried out and according to final bill made by him and scrutinized by representative of the defendant claims were finalised. It is mentioned that when statement of account was drawn it was found that defendant had paid excess amount of Rs.14104/- to the plaintiff and requested him to refund the same. In his cross examination, PW-1 has admitted that he has received the statement of payments Ex.PW1/D-3 but he did not reply the same. In Ex.PW-1/D-3 he has also admitted that he did not send reply thereto. He has even admitted that he has received Ex.PW1/D-4 and D-5 but no reply was sent by him to these letters. When the plaintiff admitted that he had received letters Ex.PW-1/D-3 to D-5 containing assertion on behalf of the defendant that it did not owe any liability to

the plaintiff, I am of the view that inference is that plaintiff did not dispute the position as set up by the defendant. In other words, inference is that plaintiff admitted that it did not have any claim against the defendant. I am, therefore, of the view that it has been proved on record by the defendant that claim of the plaintiff was settled by the defendant. I, therefore, hold that plaintiff has failed to prove that he had any cause of action to file the present suit or the defendant is liable to pay any amount to the plaintiff. These issues are accordingly decided in favour of defendant and against the plaintiff."

18. Though not expressly recorded by the learned Trial

Judge, it is apparent that the signature tune of the decision of

the learned Trial Judge is the contemporaneous conduct of the

parties; the contemporaneous conduct being the plaintiff not

responding, in writing, to Ex.PW-1/D-3, Ex.PW-1/D-4 and

Ex.PW-1/D-5. It is apparent that the rival oral versions, being a

case of word of mouth versus word of mouth, the impasse has

been broken by the learned Trial Judge with reference to the 3

documents, Ex.PW-1/D-3, Ex.PW-1/D-4 and Ex.PW-1/D-5 written

by the defendant to which no contemporaneous denial was

made by the plaintiff.

19. It was urged by learned counsel for the plaintiff that

the learned Trial Judge gravely erred in not appreciating that

while raising a bill Ex.PW-1/6 on 31.7.1996, the plaintiff had

raised a claim for idle labour. With reference to Ex.PW-1/7 the

learned counsel urged that the learned Trial Judge failed to

appreciate that in the said letter dated 15.7.1996 the

defendant acknowledged having failed to meet it's

commitment under the contract. With reference to Ex.PW-1/9,

learned counsel urged that the learned Trial Judge failed to

appreciate that in said letter defendant acknowledged that

providing "A Grade Welder" at the site had been a problem.

20. Per contra, learned counsel for the defendant urged

that the reasoning of the learned Trial Judge is correct for the

reason admittedly plaintiff never refuted Ex.PW-1/D-3, Ex.PW-

1/D-4 and Ex.PW-1/D-5.

21. It is settled law that where, on a given evidence,

two views are possible the Appellate Court would not

substitute its view with the view taken by the learned Trial

Judge. The jurisdiction of First Appellate Court and especially

when the Appellate Court is the final Court of law and facts is

to consider, with reference to the evidence, whether the view

taken by the learned Trial Judge is reasonably probable and

while so doing it has to be ensured that the learned Trial Judge

has neither ignored material evidence or a material

circumstance and has not included irrelevant evidence or an

irrelevant circumstance while evaluating evidence. If it is

found that material evidence or circumstance has been

ignored, the evidence has to be reconsidered bringing into

consideration the material evidence or the material

circumstance found ignored by the learned Trial Judge.

Similarly, where irrelevant evidence or irrelevant circumstance

has been brought into aid while considering evidence by the

learned Trial Judge, the Appellate Court has to reprobablize the

evidence ignoring the said irrelevant evidence or irrelevant

circumstance.

22. Indeed, the plaintiff never refuted Ex.PW-1/D-3,

Ex.PW-1/D-4 and Ex.PW-1/D-5. This gives credence to the view

taken by the learned Trial Judge that the contemporaneous

conduct of the parties reveals that the plaintiff did not refute the

reasons on which the defendant reduced the amount payable

when cleared the bills received from the plaintiff.

23. It would not be out of place to mention that vide

Ex.PW-1/D-3 all bills submitted by the plaintiff till 16.08.1996

were processed and against each bill, defendant gave comments

under the 'remarks' column. Further, cash payments made to the

employees/representative of the plaintiff at site were also

detailed. Further, Rs.45,790/- paid to the workers of the

appellant at site were referred to and deducted from the net

amount payable to the plaintiff. In the said document the

defendant made adjustment for material supplied by it to the

plaintiff by recording as follows:-

"I understand that we have supplied some material such as bolts, nuts, screws etc. to you from out office which is also debittable to your account. Your bills 105 and 106 are being processed and it will be adjusted in the excess payment already made to you."

24. No letter was shown to us by learned counsel for the

plaintiff rebutting the contents of Ex.PW-1/D-3.

25. Similarly, while writing Ex.PW-1/D-4 on 4.12.1996 the

defendant wrote: "based on your workers' demand and

subsequent discussions between NPC officials, your

representative Mr.Rajput and Blue Star Ltd., we have settled the

payment of wages of your 10 workers for a total amount of

Rs.45,790/-. A copy of the stamped receipts has been collected

by your representative Mr. Rajput."

26. No document was shown to us rebutting the aforesaid

contents as also other contents of Ex.PW-1/D-4. Similarly,

learned counsel for the plaintiff could not point out any letter

written by the plaintiff rebutting defendant's letter dated

26.5.1997 Ex.PW-1/D-5.

27. Conduct of the parties when a contract is under

execution is relevant evidence. It throws light as to how parties

understood the implementation of the contract from time to time.

Thus, we are in complete agreement with the view taken by the

learned Trial Judge that Ex.PW-1/D-3, Ex.PW-1/D-4 and Ex.PW-

1/D-5 show that the plaintiff never refuted the scaling down of

the bills submitted by the plaintiff; adjustment of payment

made to the workers of the plaintiff by the defendant as also

adjustment on account of certain material supplied by the

defendant to the plaintiff.

28. As noted hereinabove, learned counsel for the

plaintiff made submissions with respect to Ex.PW-1/6, Ex.PW-

1/7 and Ex.PW-1/9.

29. Vide Ex.PW-1/6, plaintiff raised a bill in sum of

Rs.27,900/- on account of idle labour. It was urged that receipt

of said bill and payment due pertaining to the bill stands

admitted by the defendant, being entry at serial No.3, in

Ex.PW-1/D-3. Learned counsel for the plaintiff urged that

having admitted entitlement of the plaintiff to receive idle

labour charges the defendant was precluded from urging to

the contrary.

30. Pertaining to Ex.PW-1/6, as urged by learned

counsel for the defendant, we note that while settling the

various bills raised by the plaintiff, in Ex.PW-1/D-3, the

defendant referred to the said bill but cleared payment only in

sum of Rs.10,000/- as against Rs.27,900/- claimed in the bill.

31. As noted hereinabove, the plaintiff never refuted the

contents of Ex.PW-1/D-3.

32. It is obvious that defendant accepted limited liability

on account of idle labour charges and released payment for

the amount relatable to the liability admitted and plaintiff

accepted the amount without demur. We say so for the reason

in Ex.PW-1/D-3, the defendant paid only Rs.10,000/- towards

idle labour charges.

33. That explains Ex.PW-1/6.

34. No doubt, vide Ex.PW-1/7, the defendant did write

that it did not meet defendant's commitment under the

contract. However, we note that the sentence on which

learned counsel for the plaintiff picked up is a polite language

used in a commercial letter. Read in the context of the

succeeding sentence the truth would be revealed. The

defendant has written as under:-

"We record to inform you that we could not meet our commitment just because of your uncomplete work. So far you did not shift your angles to the RAB-1 ladder welding generator. This is why we could not complete our supporting."

36. As we read the paragraph, in a polite language, the

defendant has conveyed to the plaintiff that on account of

plaintiff not shifting angles to the RAB-1 ladder welding

generator the defendant could not comply of its commitment.

Thus, we find no admission as alleged.

36. We note that two documents have been exhibited

as Ex.PW-1/9. The first is a letter written by the plaintiff to the

defendant (at page 337 of the record of the Trial Court). The

other is a letter written by the defendant to the plaintiff on

25.7.1996 (at page 345-347 of the Trial Court Record).

37. No doubt, in the said letter, the defendant has

acknowledged that non-availability of A Grade Welder at the

site has created a problem. But, that by itself would be neither

here nor there for the reason we find no evidence on record to

show the consequences of non-availability of A Grade Welder

at site.

38. We note that vide Ex.PW-1/10, plaintiff raised an

issue on account of non-availability of a welder at site for 2½

months. We note that Ex.PW-1/10 was written by the plaintiff

to the defendant on 4.8.1996.

39. In the absence of any evidence or material to link

idle labour deployed at the site by the plaintiff on account of

non-availability of A Grade Welder, we are afraid, we are

unable to quantify any amount payable to the plaintiff. We are

further handicapped for the reason learned counsel for the

plaintiff could not locate any proved document whereunder

plaintiff had raised a specific bill on account of labour rendered

idle for non-availability of A Grade Welder.

40. Learned counsel for the defendant pointed out to us

that the bill for idle labour raised on 22.7.1996 was the bill

relatable to idle labour on account of non-availability of A

Grade Welder. Counsel pointed out that said bill of the plaintiff

was duly noted in defendant's letter Ex.PW-1/D-3 and as

against claim in sum of Rs.27,900/-, the defendant had paid

Rs.10,000/-. Counsel urged that it is apparent that the bill for

idle labour on account of non-availability of A Grade Welder

was raised by the plaintiff in sum of Rs.27,900/- and accepted

by the defendant in sum of Rs.10,000/-. Further, when the

defendant accepted part liability and tender payment for the

same, plaintiff accepted the payment without demur.

41. In view of the fact that primary documents are not

available on the judicial record and in the absence of any other

bill for idle labour shown to us pre 4.8.1996 there is

considerable merit in the submissions made by learned

counsel for the defendant that the plaintiff was recompensed

for idle labour at site due to non-availability of A Grade Welder.

42. We find no merits in the appeal.

43. The appeal is dismissed.

44. Defendant would be entitled to cost all throughout.

PRADEEP NANDRAJOG, J.

August 27, 2008                   SUNIL GAUR, J.
mm