Delhi High Court
M/S Max Corona Enggs & Consultants ... vs M/S Mukund Engineers Ltd on 14 July, 2008
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+
CS(OS) 27/2004
% Date of decision : 14.07.2008
M/S MAX CORONA ENGGS & ......Plaintiff
CONSULTANTS (P) LTD
Through: Nemo.
Versus
M/S MUKUND ENGINEERS......Defendant/Counter-claimant.
LTD
Through : Ms Juma Bose, Advocate
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported
in the Digest?
RAJIV SAHAI ENDLAW, J (ORAL)
1. The plaintiff filed a suit for recovery of Rs 12,47,204/-
from the defendant before the court of the Additional District Judge,
Delhi. The defendant filed its written statement alongwith counter
claim before the Additional District Judge before whom the suit was
pending. On 15th September, 2004 none appeared on behalf of the
plaintiff before the learned Additional District Judge where the suit
was initiated by the plaintiff and accordingly the suit of the plaintiff
was dismissed in default and the plaintiff was proceeded ex parte in
cs(os)27/2004 page no.1 of 5
the counter claim of the defendant. On subsequent date, it was
realized by the learned Additional District Judge that the counter
claim was in excess of the pecuniary jurisdiction of that court and
accordingly the counter claim was ordered to be placed before the
District Judge and the District Judge vide order dated 29th October,
2004 ordered the file to be placed before this court and directed
appearance before this court for the date fixed.
2. Upon receipt of the file before this court, court notice
was ordered to be issued to the parties. The defendant/counter
claimant appeared in pursuance to the said court notice. The order
dated 27th April, 2006 records that the counsel for the plaintiff had
been served with the court notice but the plaintiff had remained
unserved. The counsel for the plaintiff on whom the court notice
was reported to have been served, however, did not appear before
the court. Subsequently, the plaintiff was also served by affixation
at the last known address of the plaintiff but still none on behalf of
the plaintiff appeared before the court and the plaintiff was
proceeded ex parte (in the counter claim) again vide order dated
19th September, 2006 of this court. The counter claimant thereafter
led its ex parte evidence by filing the affidavit by way of
examination-in-chief of its Deputy General Manager Shri Ramesh L
Uttamani and by proving the documents Exhibit D1/1 to Exhibit
D1/24.
3. The counter claimant has proved that the plaintiff had
represented that it was the manufacturer of Flexivinyl (UPVC)
sheets and was a specialist in undertaking water proofing works and
was having enough experience in laying lining of the reservoirs; on
cs(os)27/2004 page no.2 of 5
the said representation of the plaintiff, the counter claimant placed
a work order dated 26th March, 2001 on the plaintiff for supply and
laying lining of 1mm UPVC sheets at the raw water reservoir site of
the counter claimant at M/s Godawari Sugar Mills Limited, Sameer
Wadi, Karnataka on the terms and conditions contained therein.
The said work order has been proved as Exhibit DW1/13. As per
clause 10 of the said order, 70% of the price was to be released by
the counter claimant to the plaintiff on getting the details regarding
dispatch of materials by the plaintiff and the counter claimant was
to deduct an amount equivalent to 5% from the bills of the plaintiff
and which amount was to be returned to the plaintiff on expiry of
defect liability period of 12 months from the date of completion of
job. It is further a term of this work order that the plaintiff was to
do testing at site and the sheet which the plaintiff was to lay for
water proofing were to be manufactured strictly as per IS-2076-
1961 from Virgin Resins. The said work order further provides that
the plaintiff will give to the counter claimant standard performance
guarantee of 10 years for the sheets supplied and laid by the
plaintiff.
4. The witness of the counter claimant has further deposed
that the quality of the work executed by the plaintiff was extremely
poor and the plaintiff did not carry out the tests. It is further in
evidence that heavy leakages occurred throughout the central bund
of reservoir and the counter claimant had to engage consultant for
ascertaining the cause of leakage; it was found that the leakage was
from the field seams of PVC liner laid by plaintiff and from
defects in PVC liner supplied by plaintiff and owing to damage
cs(os)27/2004 page no.3 of 5
caused by plaintiff by puncture while laying the liner. It is the
evidence of the counter claimant that the works of the counter
claimant were adversely affected owing to the aforesaid and the
overall time schedule of the project and commissioning of the plant
was delayed. It has further been deposed that the plaintiff inspite
of repeated requests and reminders, did not take remedial actions
and ultimately the counter claimant informed the plaintiff that if the
plaintiff failed to carryout the rectification work, the counter
claimant would carry out the same at the costs and risk of the
plaintiff and the plaintiff was further informed that Rs 25-30 lacs
may have to be spent on the rectification work. The witness of the
counter claimant has deposed that the counter claimant has spent
Rs 25 lacs in arresting the leakage and has suffered liquidated
damages in the sum of Rs 2,48,000/- and thus made the counter
claim of Rs 27,48,000/- together with interest at 18% per annum on
the plaintiff.
5. I may at this stage notice that the plaintiff had instituted
the suit for recovery of balance amount stated to be due from the
defendant/counter claimant to the plaintiff for the works carried out
by the plaintiff. This suit, as aforesaid, was dismissed in default. It
is the case of the counter claimant that the plaintiff instituted the
suit as a counter blast to the aforesaid claims of counter claimant.
6. The evidence of the witness of the plaintiff remains
unrebutted. I have satisfied myself that the counter claim was
instituted within time. The counter claimant had vide letter dated
15th February, 2002 (Exhibit D1/20) given notice to the plaintiff to
carry out the rectification work and the counter claim was filed on
cs(os)27/2004 page no.4 of 5
9th July, 2004 and is as such within time. Moreover, the work order
placed by the counter claimant on the plaintiff and which was
accepted by the plaintiff, as noticed above, provided for the plaintiff
to guarantee performance for ten years. Yet another clause of work
order provided for 12 months as the defect liability period.
7. The counter claimant has thus made out a case for
recovery of the sum of Rs 27,48,000/- from the plaintiff. However,
since the plaintiff did not contest the counter claim, the counter
claimant is held and entitled to interest at 6% per annum only from
the date of institution of the counter claim, till realization. The
counter claimant is also entitled to costs limited to court fees paid
on the counter claim. The counter claim is accordingly decreed.
RAJIV SAHAI ENDLAW, J.
July 14, 2008.
cs(os)27/2004 page no.5 of 5
