M/S Yash Build Well (P) Ltd vs M/S Viraj Alloys Ltd & Anr
2008 Latest Caselaw 1131 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+
        CS(OS)2060/2007


%                                   Date of decision :     24.07.2008



M/S YASH BUILD WELL (P) LTD                          .......        Plaintiff
                                  Through: Ms Rajshree, Advocate.



                                    Versus


M/S VIRAJ ALLOYS LTD & ANR                          ........ Defendants

                                             Ex-parte.



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


1.                The plaintiff has instituted the present suit for the

recovery of Rs 26,66,559/- with pendente lite and future interest.

Though the suit is instituted against M/s Viraj Alloys Ltd and Shri

Niraj Kochar but in the prayer paragraph in the plaint decree is

claimed against "defendant company" only. The claim in suit is for

the balance amount due for the construction work carried out by the

plaintiff on the Farm House at Vasant Kunj at the instance of the

defendant.




cs(os)2060/2007                                            page no.1 of 4
 2.                Both the defendants were proceeded ex parte vide order

dated 11th March, 2008 and remain absent. The plaintiff has led its

ex parte evidence vide affidavit of its director Shri K.P. Singh who

has also instituted the suit and signed and verified the plaint on

behalf of the plaintiff.        He has proved Resolution of Board of

Directors of plaintiff in his favour as Ex PW1/1.        He has further

deposed that the plaintiff had agreed to work for the farmhouse of

the defendant; that the work has been executed by the plaintiff as

per requirement and under the strict supervision through a

consultant appointed by the defendant and the other agents of the

defendant; that the plaintiff has been submitting running account

bills (which have been proved as Ex PW1/2 to Ex PW1/7) through

architect/consultant appointed by the defendant and the bills have

been paid by the defendants to the plaintiff from time to time; that

the bills submitted by the plaintiff to the defendant also show the

work executed by the plaintiff; that the plaintiff had submitted the

7th running account bill dated 25th April, 2007 for the gross value of

work done for Rs 1,07,01,924/- (Ex PW1/8) out of which net value of

work done worked out to Rs 18,53,742/- after deduction; that the

plaintiff has been reminding the defendant for release of the balance

payment but the defendant has failed to do so and the consultant

earlier appointed by the defendant has also left the defendant; that

the plaintiff submitted the final bill on 3rd August, 2007 for Rs

26,66,559/- (Ex.PW1/9) which included the quantities executed and

rates claimed upto the 7th running account bill; that the defendant

has, thereafter, carried out addition/alterations to the property for

which reasons the measurement of the work done is not possible




cs(os)2060/2007                                            page no.2 of 4
 now; that a principal sum of Rs26,66,559/- is due from the defendant

to the plaintiff; that the plaintiff is also entitled to interest at 18%

per annum. The said evidence of the plaintiff remains unrebutted.




3.                The entire plaint does not describe the defendant No.2

and does not disclose a cause of action against the defendant No.2.

The territorial jurisdiction is also invoked with reference to

defendant company.           The documents filed by the plaintiff also show

that the bills were being raised by the plaintiff on the defendant

No.1 (M/s Viraj Alloys Ltd) and not on the defendant No.2 (Shri

Niraj Kochar). In the affidavit by way of evidence also no evidence

of claim or right of claim against defendant No.2 is led. The plaintiff

has not been able to make out any case against the defendant No.2.

The defendant No.1 is a limited company and is entitled to be sued

in its own name and even if the defendant No.2 is the director or

officer of the defendant No.1, in the absence of any averments of the

plaintiff in this respect, the defendant No.2 would not become liable

for the debts, if any, of the defendant No.1. As aforesaid, the prayer

is also against defendant company only.




4.                From the ex parte evidence, the claim of the plaintiff in

so far as against defendant No.1 is within limitation. The plaintiff is,

accordingly, found entitled to a decree for the principal sum of Rs

26,66,559/-, however, against the defendant No.1 only.              As far as

the claim of the plaintiff for interest is concerned, the plaintiff has

not made out any basis for interest at 18%. The defendants have




cs(os)2060/2007                                               page no.3 of 4
 not contested the suit and in the circumstances plaintiff is entitled

to interest at 6% per annum only on the principal sum of Rs

26,66,559/-, from the date of institution of the suit till realization

with costs limited to the court fees paid by the plaintiff. The decree

sheet be drawn up accordingly.




                                         RAJIV SAHAI ENDLAW, J.

July 24, 2008. M

cs(os)2060/2007 page no.4 of 4