M/S Sharma Enterprises vs Hotel Leelaventure Ltd.
2009 Latest Caselaw 1307 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CS(OS) No.2254 of 1989

%                       Date of Decision: 13.04.2009

                                                      .... PLAINTIFF

M/S SHARMA ENTERPRISES
              Through: Ms. Roxna S. Swamy, Advocate


                                  Versus

HOTEL LEELAVENTURE LTD.                               .... DEFENDANT

                       Through Mr. Sanjay Jain, Sr. Advocate with
                               Ms.Jhuma Bose, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR


1.      Whether reporters of Local papers may be              YES
        allowed to see the judgment?
2.      To be referred to the reporter or not?                NO
3.      Whether the judgment should be reported               NO
        in the Digest?



ANIL KUMAR, J.

1. This judgment shall dispose of plaintiff's suit for recovery of

Rs.20,35,101.88 filed against the defendant for recovery of the

amounts due from the defendant to the plaintiff.

2. Brief facts to appreciate the controversies between the parties

are that the plaintiff is a partnership firm duly registered under the

Partnership Act and Shri Ramesh Sharma is one of its partners. It

was contended by the plaintiff that Shri Ramesh Sharma was one

of its registered partners who is authorized and competent to sign,

verify and institute the suit on behalf of plaintiff's firm.

3. The defendant is a private limited company which was

constructing a five star luxury hotel in Bombay. The plaintiff was

contacted for supply and fixing furniture in the luxury suites in the

Leela Penta Hotel of the defendant. The plaintiff had shown their

willingness to carryout the interior work including supply and

fixing of furniture at the same rate as were given to M/s. Damian,

Bombay.

4. It was contended by the plaintiff that a work order

No.HLV/MD/Suits/86 dated 12th December, 1986 was placed with

the plaintiff, for a sum of Rs.18,27,635/-, for providing furniture

for 24 suites. The terms and conditions were incorporated in the

work order dated 12th December, 1986. An endorsement was made

on the work order by the plaintiff on 17th December, 1986

accepting the terms and conditions. The work order was accepted

at Delhi on 17th December, 1986 and on the same date, plaintiff

received from the defendant a draft of Rs.2.94 lakh dated 13th

December, 1986. While accepting the work order, it was

categorically stipulated that payment conditions were to be

reviewed.

5. The copies of the work order placed with the plaintiff were

accepted by him and were sent to M/s. Rajinder Kumar and

Associates, New Delhi, interior decorators of the defendant for this

project and to M/s. Semac, New Delhi, authorized consultant of

M/s. Rajinder Kumar and Associates as the work had to be carried

out as per their specifications and instructions. The bills of the

plaintiff were also to be certified by them. Before the formal

agreement could be executed, for which the plaintiff had supplied a

stamp paper of Rs.10, by letter dated 29th December, 1986 the

defendant altered the scope of work and restricted it to 12 suites

only in place of 24 suites. Consequently, the total consideration

was also changed to Rs.9,13,817/-. The letter dated 29th

December, 1986 awarding the modified work was accepted by the

plaintiff and thereafter, plaintiff executed the work. On completion

of 80% of the work, the plaintiff wrote to the defendant on 16th

February, 1987 that despite concluding 80% of the work, necessary

drawings had not been received by the plaintiff and therefore, it

was not possible to send all the furniture to Bombay. By the said

letter dated 16th February, 1987, the plaintiff also claimed release

of another sum of Rs.3.00 lakh on account of running payment.

6. After the plaintiff had completed 80% of the work, the

defendant, vide work order No. HLV/VPE/86/083 dated 25th

February, 1987, further ordered the plaintiff to complete work on

14 more suites by 31st March, 1987. The other terms and

conditions for executing the work for additional 14 suites remained

the same.

7. The defendant, thereafter, made further payment of Rs. 2.94

lakh, by cheque No.427495 and Rs. 98,000/- by D.D.No. 139732

on 26th February, 1987. A further amount of Rs.9,17,919/- was

due to the plaintiff which as per terms of the agreement was

payable by the defendant to the plaintiff within seven days after

receiving the certificate from the architect. This amount was,

however, not paid and only a sum of Rs.1.86 lakh was paid by

cheque No.027555 on 10th March, 1987. Thereafter an amount of

Rs.28,000/- was paid in cash on 13th March, 1987 and an amount

of Rs.73,500/- was paid by cheque No.353 on 18th March,1987,

however, the entire amount was not paid.

8. The plaintiff asserted that the defendant was satisfied with

the work done in the 12 suites in the hotel of defendant and

therefore, the defendant had placed the order for the work in

additional 14 suites. According to the plaintiff, the additional work

of 14 suites was given only after defendant was satisfied about the

quality of the work executed by the plaintiff. According to the

plaintiff the only complaint which the defendant had about the

work done by the plaintiff was about the rate of its progress. It was

averred that since the delay was not due to any fault on the part of

the plaintiff, by communication dated 5th April, 1987, the plaintiff

had intimated the defendant that the furniture for the executive

suites was lying ready at the site for many days and that despite a

number of reminders by the plaintiff's supervisor at the site

regarding supply of upholstered material, the material had not

been supplied nor has the carpet laying work been completed and

therefore it was not possible for the plaintiff to complete its work.

9. The plaintiff contended that losses were suffered by plaintiff

on account of its labour sitting idle and even the marble for the

dining tables in the suites had not been provided. The letter dated

5th April, 1987 was not replied to by the defendant. The plaintiff

also complained about change of fabric material 3/4 times as per

the instructions of the Chairman of the defendant company and

the Project Coordinator at that time Mrs. Neelam Mukherjee, which

had further contributed to delay. The plaintiff's allegation is that

only some minor polishing job and finishing works were left which

were, however, completed later on as and when suites were made

available to the plaintiff after completion of the civil work. The

plaintiff in any case contended that he finished and completed the

entire work by 3rd week of April, 1987 and these facts were also

communicated to defendant by letter dated 17th April, 1987.

10. By letter dated 17th April, 1987, the plaintiff had also pointed

out about the making of 29 sets of sofa and chairs at the instance

of the defendant for the 7th floor of the hotel valued at Rs.3.00 lakh

(approximately). By the said letter, the plaintiff had also pointed

out the additional work done by him for which was payment was to

be made as extra items, the value of which was estimated to be

between Rs.1.50 lakh to Rs.2.00 lakh. The defendant, however, by

letter dated 24th April, 1987 brought to the notice of the plaintiff

that no certified bills were pending with him from Mr. Murthy of

M/s. Semac by whom all the bills had to be scrutinized and

certified. The defendant also pointed out in said letter that he had

carried out many works departmentally on behalf of plaintiff and

that deductions would be made in that respect from the bills of the

plaintiff, however, no details of such works alleged to had been

carried out were given.

11. Since the defendant had pointed out by letter dated 24th

April, 1987 that no certified bills were pending, the plaintiff sent

the Bill No.RAC/01/87-08 dated 25th April, 1987 for a total

amount of Rs.19,96,607.60. The plaintiff also explained the

allegation of slow progress of work and contended that no payment

had been made to the plaintiff although plaintiff had been carrying

out work as usual and the defects and rectification pointed out had

been carried out and rectified by Shri Baldev Sharma who was

available at the site on 29th April, 1987. On 2nd May, 1987, the

defendant, however, paid an amount of Rs.9,800/- by its Cheque

No.002440. The plaintiff, therefore, on 4th May, 1987 pointed out

to the defendant that out of their total liability of Rs.27,37,842/-

an amount of less than Rs.10.00 lakh only has been paid and,

therefore, plaintiff further demanded ad hoc payments of about

rupees nine lakh to rupees ten lakh at the earliest. The plaintiff

also brought to the notice of the defendant that the entire work had

been completed except placing of furniture and upholstery work.

The plaintiff also raised an extra item bill No.05/87-88 for

Rs.4,74,235/-.

12. The plaintiff asserted that on 6th May, 1987, a meeting had

taken place between the plaintiff and Mr.Vivek Nair and Mr.Dhavle

on behalf of Defendant Company who had assured the payment

and that it was represented by them that an amount of Rs.3.28

lakh shall be paid on 6th May, 1987 itself. However, later on when

the plaintiff approached the Accounts Department of the

defendant, he was told that only an amount of Rs.1.00 lakh in

place of Rs.3.28 lakh could be paid. The plaintiff objected to the

same in its letter dated 9th May, 1986 to the Chairman of the

defendant company and also reiterated the amounts which were

due. By another communication dated 9th May, 1987, plaintiff also

brought to the notice of the defendant that the reason for the non-

certification of his bill by the Accounts Department was the non-

availability of Mr.Murthy who has not been on the site for a long

time and the bill could not be certified in the absence of Mr.

Murthy. Plaintiff also pointed out that no work is pending and the

changes which were sought by the defendant had also been carried

out. The plaintiff also pointed out that 29 sets of sofa chairs and

dresser chairs were dispatched on 2nd May, 1987 and had reached

the site by 7th May, 1987 and Bill No.6/87-88 dated 9th May, 1987

for an amount of Rs.2,66,655/- had also been raised.

13. It is contended on behalf of plaintiff that on 18th May, 1987,

the defendant wrote to him about the rejection of 29 sofa sets, on

the ground that the plaintiff has not accepted the rates quoted by

defendant and has raised the bill No.6/87-88 dated 9th May, 1987

and since the furniture were not received by 2nd May, 1987, the

defendant had a right to cancel the order. The defendant, therefore,

asked the plaintiff to remove all the furniture from the site. The

defendant reiterated these facts by letter dated 11th June, 1987

and 28th July, 1987 and 29th August, 1987. By letter dated 29th

August, 1987 defendant is alleged to have communicated to the

plaintiff that the management has to incur heavy expenses for safe

custody of 29 sofa sets and consequently from 9th May, 1986

onwards an amount of Rs.2,000/- per day would be debited from

the account of the plaintiff towards storage charges.

14. Refuting the allegations of the defendant, plaintiff by its letter

dated 28th June, 1987 had communicated that the bill could be

amended on the basis of rates quoted by M/s.Damian of Bombay

and regarding the delay in the delivery, it was stated that while

placing the order for 29 sofa sets, the defendant had represented

that amounts are being released as advance which were not

released and the sofa sets were sent in good faith. The plaintiff by

letter dated 25th July, 1987 also communicated the balance

amount due to the plaintiff amounting to Rs.13,48,176/- and also

rejected the grounds for rejection of 29 sets of sofas and chairs.

Regarding rejection of sofas because they had not reached by 2nd

May, 1987, it was contended that during the verbal discussions 35

days' time was given after giving the mobilization advance and

since advance was not given nor the time as agreed was given,

therefore, on the ground that the sofas were not received by 2nd

May, 1987 the same could not be rejected. According to plaintiff,

defendant also took another dishonest plea on 13th August, 1987

that the defendant has spent Rs.5.00 lakhs on rectification of some

alleged defects in the sofa sets. The plaintiff pleaded that the

defendant's stand changed from time to time and the defendant

was trying not to pay the amounts due to the plaintiff. The plaintiff

also tired to work out the differences through certain mutual

friends. The plaintiff relied on a report dated 8th October, 1987

worked out by M/s.Jayant Tipnis Consultants Pvt. Ltd. which also

recommended that an amount of Rs.13,46,176/- plus interest at

18% was due from defendant to the plaintiff. On failure of the

defendant to make any further payment the plaintiff sent a demand

for the amount due on 11th August, 1988 and the suit for recovery

was filed on 5th August, 1989.

15. The suit was contested by the defendant who contended that

the court at Delhi has no jurisdiction to try and dispose of the suit.

It was contended that the suit has been filed with a view to

pressurize the defendants to submit to the unreasonable and illegal

demands of the plaintiffs. The defendant, however, admitted that

the work order was placed on 12th December, 1986 for supplying

furniture for 24 suites. It was admitted that the defendant

released the mobilization advance of Rs.2,94,000/-. Though a

bank guarantee was to be executed by the plaintiff, however, the

amount of Rs.2,94,000/- was released on 17th December, 1986

without any bank guarantee being furnished by the plaintiff. The

scope of work was reduced from 24 suites to 12 suites on 29th

December, 1986 and on 25th February, 1987 additional work for

supplying and fixing furniture in 14 additional suites was

entrusted to the plaintiff. Regarding the award of work of 14

additional suites, the defendant pleaded that it was not on account

of the satisfactory work of 12 suites but on account of the fact that

the defendant was short of time to get the work done in the 14

suites as the hotel opening was slated for 12th April, 1987 and the

plaintiff had agreed to complete the work to meet the deadline.

16. According to the defendant, plaintiff had agreed to complete

the work in respect of all the suites by March 31, 1987. Though

defendant paid to the plaintiff an aggregate sum of Rs.13,50,000/-

including Rs.9,00,000/- as mobilization advance, however, the

Plaintiff did not complete the work nor was the progress of the

work satisfactory. Plaintiff failed to adhere to the time schedule

and the work was substandard and unsuitable for the required

standards of a five-star hotel. These facts were communicated to

the plaintiff by letter dated 24th April, 1987. The plea of the

defendant is that he had incurred an expenditure of Rs.3,05,000/-

to rectify the defects in the plaintiff's work and the said amount

has been debited from the amount which are due from defendant

to the plaintiff.

17. Regarding the 29 sofa sets, defendant alleged that the sofa

sets were rejected as they were not according to specifications and

had inferior quality of workmanship. The plaintiff was also

allegedly intimated about the rejection by letter dated 18th May,

1987 that all the 29 sofa sets had been rejected and the Bill

No.06/87-88 dated 9th May, 1987 for Rs.2,66,655/- was also

returned. It is alleged that since the plaintiff failed to take back the

sofa sets despite various communications, the defendant by letter

dated 29th August, 1987 communicated to the plaintiff that the

defendant would charge a sum of Rs.2,000/- per day towards the

storage charges till removal of the sofa sets. Thereafter defendant

by inviting public tenders sold the 29 sofa sets for a sum of

Rs.12,325/-. In the circumstances, the defendant have also

claimed a sum of Rs.14,77,675/- as storage charges for the 29 sofa

sets at the rate of Rs.2,000/- per day. The defendant contended

that no amount is due from defendant to the plaintiff and on the

contrary the defendant have to recover an aggregate sum of

Rs.16,18,062.40 from the plaintiff.

18. The plaintiff filed a replication to the written statement of

defendant categorically contending that Shri Vinod Agnari is not

the Manager of the defendant and that he was not competent to

sign, verify the pleadings on behalf of the defendant company. The

plaintiff denied the allegations made by the defendant that were

contrary to the pleas and contentions of the plaintiff and reiterated

his pleas.

19. On the basis of the pleadings and the documents of the

parties, the following issues were framed on 15th November, 1991:-

1. Whether this Court has no territorial jurisdiction? OPD

2. Whether the plaintiff is a registered partnership firm? OPP

3. Whether Mr.Ramesh Kumar Sharma is one of the

registered partners of the plaintiff firm and whether the

plaint has been signed and verified and the suit has been

instituted by a duly authorized person? OPP

4. Whether the plaintiff failed to adhere to the time schedule

for completing the work. If so to what effect?

5. Whether the plaintiff's work was sub-standard and

unsuitable for the required standard of a five star hotel as

alleged in the written statement. If so to what effect? OPD

6. Whether the plaintiff is entitled to the payments against

their bills dated 25th April, 1987, 4th May, 1987 and 9th

May, 1987? OPP

7. Whether the written statement has been signed and

verified by a duly authorized person? OPD

8. To what amount, if any, the plaintiff is entitled towards

principal and interest?

9. Relief.

20. On behalf of plaintiff, Shri Ramesh Sharma, PW-1; Shri

Baldev Sharm, PW-2; Shri Joginder Singh Chhabra, PW-3; Shri

Resham Singh, PW-4 and Shri Vishwanath Sharma, PW-5, were

examined. The depositions of these witnesses were filed on

affidavits and they were cross-examined.

21. The defendant filed the deposition of Sh.Arvind Waman

Degwekar, Deputy General Manager by an affidavit dated 12th

August, 2005 who was cross examined by the plaintiff. During the

course of the arguments an application under Order XVIII Rule 4

and Order XVII and Order VIII Rule 1-A(3), being IA No.4656/2006,

was filed seeking to examine Sh.Vinod Agnani the signatory of the

written statement and to place on record his appointment letter.

The application was allowed and an additional deposition of the

witness of the defendant, Sh.Vinod Agnani, was taken on record

and the affidavit was exhibited as exhibit DW.2/A. The letter dated

25th February, 1985 by the Managing Director of Leela Scottish

Lace Pvt. Ltd. was also taken on record and was exhibited as

DW.2/B. The said witness deposed on 24th May, 2006 but he was

not cross examined despite an opportunity given on that date.

22. The learned counsel for the parties were heard at length and

the pleadings and the documents and the evidence have also been

perused. By order dated 7th October, 1998 all the exhibit marks

other than those admitted by defendants (exhibit P1 to P32) and

those proved in the trial (exhibit PW.1/1 to PW.1/3 and mark PW

1/B) were deleted. Therefore, it appears exhibit marks PW.2/1 to

PW.2/3; PW.5/1 to PW.5/5; PW.1/5, PW.1/6, PW.3/1 to PW.3/3

and others were deleted. Though the exhibit marks were deleted on

these documents by said order, later on evidence has been led on

these documents by the parties, however, these documents have

not been exhibited again. The learned counsel for the plaintiffs and

the defendant have relied on some of these documents which do

not have exhibit marks as exhibit marks on those documents were

deleted by order dated 7th October, 1998. Therefore, the question

which arises is whether these documents are to be considered or

not.

23. The learned counsel for the plaintiff has contended that even

though the exhibit marks were deleted pursuant to order dated 7th

October, 1998. However, in view of the testimonies of various

witnesses regarding these documents, they can be considered. The

learned counsel has relied on AIR 1973 Himachal Pradesh 62, Shiv

Mohan v. Thakur Dutt; AIR 1978 SC 1393, Ram Rattan v. Bajrang

Lal; AIR 2004 Chattisgarh 11, Santosh Kumar Gupta v. Jaiprakash

Aggarwal to contend that if a party fails to make an endorsement

on a document of an exhibit mark under Order XIII Rule 4 of the

Code of Civil Procedure, it does not preclude the consideration of

the document, if the evidence has already been led about that

document and it has been proved.

24. The learned counsel for the plaintiff has referred to the

testimonies of the partner of the petitioner and of various witnesses

on behalf of petitioner who have deposed about these documents.

She has contended that in view of the testimonies recorded about

these documents whose exhibit marks were deleted, they have been

proved and consequently they should be considered even though

the exhibit marks were not put on those documents.

25. Perusal of the testimony of the partner of the plaintiff and

other witnesses reveal that there is ample evidence regarding the

proof of these documents on which the exhibit marks were given

earlier but later on before the evidence was recorded, the exhibit

marks were deleted. In Shiv Ram (supra) it was held that omission

to make the endorsement required under Order XIII Rule 4 of the

Code of Civil Procedure does not preclude the consideration of the

document. The said provision contemplates that a document which

has been admitted in evidence should bear an endorsement by the

judge as to the number and title of the suit, the name of the person

producing the document, the date on which it was produced and a

statement of its having been so admitted. Admission of the

document is not on account of endorsement made by the judge but

on account of evidence already led in respect of the document. For

this reason, the converse is also true that mere marking or

endorsement of a document is not the proof of the document

unless there is cogent evidence in regard to the document. In Ram

Rattan (supra) the Supreme Court had held that when a document

is tendered in evidence and an objection is raised by the opposite

party that the document is not admissible, it is obligatory upon the

judge to decide the objection. However, endorsing an exhibit mark

with a stipulation that the objections shall be decided later on, is

not proof of the document unless the objection is decided.

Therefore, merely putting an exhibit mark is not the proof of the

document. Conversely the absence of an exhibit mark on a

document will not preclude the Court from considering the said

document if evidence in respect of the proof of the document has

been led.

26. Consequently, all the exhibit marks which were deleted

should be treated as the exhibit marks of those documents for

purpose of identification as ample evidence has been led by the

plaintiff's partner and other witnesses later on about these

documents. Exhibit PW.1/8 dated 25th July, 1987 will be one of the

relevant document as the defendant has claimed that the plaintiff

had agreed to give credit for the amounts claimed in that letter. By

the said debit note exhibit PW.1/8 a sum of Rs.1,01,561/- has

been claimed.

27. On behalf of learned counsel for the defendant an undated

written submission was filed wherein it was contended that since

the authorization of Sh.Vinod Agnani to sign and verify the written

statement has been established, in the circumstances the

defendant has given up issue Nos.1 to 3 & 5. It has further been

contended that there is no liability of defendant and even if plea

and contentions of the plaintiff are admitted to have been proved,

the liability of the defendant cannot be more than Rs.12,98,261/-

towards the principal sum. It was also contended that there is no

liability of pay the interest and in any case it cannot be more than

6% per annum simple interest. Though the defendant had given up

issue nos.1 to 3 & 5, however, in view of the detailed evidence

already led by the plaintiff, they are dealt with.

28. Issues Nos.2 & 3 are whether the plaintiff is a registered firm

and Sh. Ramesh Kumar Sharma is one of the registered partners of

the plaintiff firm and whether the plaint has been signed, verified

and instituted by a duly authorized person. To prove these issues

the plaintiff has produced the partnership deed dated 1st August,

1997, a copy of which is exhibit PW.1/1. PW.1 Sh.Ramesh Sharma

has identified his signature and the signatures of Sh.Baldev

Sharma, the other partner of the firm on the partnership deed. The

plaintiff has also proved the supplementary deed of partnership

dated 1st April, 1983, a copy of which has been proved as PW.1/2.

The plaintiff has also produced Form B of the registration of the

firm which is exhibited as exhibit PW.1/3. These documents,

partnership deeds and the document pertaining to the registration

of the firm have been duly proved and have not been refuted by the

defendant. It has also been proved that the plaint has been signed

and verified by one of the registered partners who has also

instituted the plaint. In these circumstances these issues have

been established by the plaintiff and it is held that the plaintiff is a

registered firm and Sh. Ramesh Kumar is one of the registered

partners who has signed and verified the plaint and instituted the

suit on behalf of the plaintiff firm. Consequently issues no. 2 & 3

are decided in favor of plaintiff.

29. The onus of issue no.1 was on the defendant who had

contended that the Court at Delhi does not have jurisdiction to try

the suit. From the perusal of the testimony of Sh.Arvind Waman

Degwekar, Deputy General Manager of the defendant, it is

apparent that no such facts have been established which will entail

an inference that the Courts at Delhi does not have jurisdiction. In

contradistinction the plaintiff has deposed categorically that Capt.

Nair, Chairman of the defendant company had stayed at Maurya

Sheraton Hotel, New Delhi where he had met him and where the

contract was negotiated and finalized. It was also deposed that

prior to the meeting with Capt. Nair there had been discussion with

Mr. Rajinder Kumar of M/s. Rajinder Kumar & Associates,

Architects of the defendant company at Delhi. The categorical

deposition of Mr. Sharma is that the acceptance of the rates on

behalf of the plaintiff firm was given to Capt. Nair when he was in

Delhi. The bank draft for Rs.2,94,000/- was given by Mr.Rajinder

Kumar from his office at B-6/17, Shopping Centre, Safdarjung

Enclave, New Delhi. In the cross examination of PW.1, Sh.Ramesh

Sharma, these facts that the offer to make the furniture was

accepted at Delhi and part payment was also made later on by Mr.

Rajinder Kumar of M/s. Rajinder Kumar & Associates, Architects

at Delhi, have not been denied nor any suggestions to the contrary

were given to the witnesses of the plaintiff. From the consideration

of the deposition of Sh.Ramesh Kumar, PW.1, therefore, it has been

established that part of the cause of action had arisen at Delhi also

and nothing has been produced by the defendant to show that the

institution of the suit, on account of any exclusion clause between

the parties, was restricted to a place other than Delhi. In any case

the learned counsel for the defendant in his written submissions

filed by M/s. K.J.John and Company Advocate had also given up

the issue No.1. Therefore, it is held that the Court at Delhi has

jurisdiction and, therefore, the issue whether the Court does not

have territorial jurisdiction, is decided against the defendant.

30. On the pleadings of the parties issue No.7 was framed about

the written statement of the defendant, as the plaintiff had

contended that the written statement has not been signed, verified

by a duly authorized person on behalf of defendant and the onus to

prove this issue was on the defendant. Sh. Arvind Waman

Degwekar, Deputy General Manager of the defendant did not

depose anything about his authorization to sign, verify the written

statement on behalf of the defendant company. In fact his affidavit

does not disclose any fact as to who has signed, verified the written

statement and how the person who has signed and verified the

written statement was authorized on behalf of the defendant

company. In his cross examination recorded on 17th November,

2005 he rather accepted that he joined the defendant company in

March, 1999 and except identifying the signatures of Mr. Dhawle

he has no personal knowledge of any of the facts as deposed by

him in his deposition on affidavit dated 12th August, 2005. He also

categorically deposed that he had no knowledge about the

documents. The other witness examined on behalf of defendant is

Mr.Vinod Agnani, DW.2. In his deposition on affidavit dated 24th

April, 2006 he stated that he has seen the written statement filed

on behalf of defendant which is signed and verified by him. It is

further deposed by him that in the year 1989 when the suit was

filed he was involved in day to day activities of finance related

matters as he was employed as a Finance Manager with the

holding company of the defendant. He also produced a letter dated

25th February, 1985 on the letter head of Leela Scottish Lace Pvt.

Ltd which document is exhibited as exhibit DW.2/B. By virtue of

the said letter the Managing Director of Leela Scottish Lace Pvt Ltd,

had appointed Mr.Vinod Agnani, DW.2 as a finance manager in

Leela Scottish Lace Pvt Ltd. Appointment letter of of DW.2 does not

stipulate that Leela Scottish Lace Pvt. Ltd is the holding company

of defendant and Sh.Vinod Agnani, DW.2 shall be liable to look

after day to day finances of the defendant company. In his

deposition DW.2 has admitted that he does not recollect as to how

much share holding Leela Scottish Lace Pvt. Ltd had in defendant

company. He, however, also stated that it was about 40%. It has

not been established that Leela Scottish Lace Pvt. Ltd is the

holding company of defendant. From the appointment letter of the

said witness in Leela Scottish Lace Pvt. Ltd it is not established

that he was liable to look after day to day finances of defendant

company. The defendant seems to be a company incorporated

under the Company Law. Neither the memorandum of Association

or Articles of Association has been produced to show that the

Director of a holding company was authorized to appoint any

person to sign and verify the pleadings on behalf of the defendant

company nor any other authorization has been proved to show as

to who are the persons who were authorized to appoint a duly

authorized person on behalf of defendant company. Director of an

holding company also becomes authorized pursuant to a resolution

passed in his favor. No resolution has been produced and proved to

show that Mr.Vinod Agnani was authorized to sign and verify the

written statement on behalf of M/s. Hotel Leela Venture Limited.

The verification of the written statement dated 14th February, 1990

also is by Sh.Vinod Agnani of Bombay Indian Inhabitants and

manager of the defendant. The written statement, except in the

verification, does not give any description of Sh.Vinod Agnani as to

what was his designation or authorization as far as the defendant

company is concerned. It has also not been averred and

established that an employee of M/s Bombay Indian Inhabitants

could sign and verify the pleadings on behalf of M/s Hotel Leela

Venture Limited.

31. In the circumstances it has not been proved as to what was

the status of Bombay India Inhabitants and that Mr.Vinod Agnani

was the manager of Bombay India Inhabitants. There is no plea

that Leela Scottish Lace Pvt. Ltd is a holding company of the

defendant. The plea of the defendant therefore, that Sh.Vinod

Agnani was the finance manager of Leela Scottish Lace Pvt. Ltd a

holding company of the defendant, is contrary to the pleas raised

in the written statement which describes Sh.Vinod Agnani as a

manager of Bombay India Inhabitants. In these circumstances, the

defendant has not been able to establish that the written statement

filed on behalf of defendant is signed, verified by a duly authorized

person. Consequently, the issue is decided against the defendant

holding that the written statement has not been signed and verified

by a duly authorized person. Therefore, natural corollary of this

finding is that whatsoever pleas have been taken in the written

statement cannot be considered as the pleas of the defendant

company. Therefore the pleas and contentions raised on behalf of

the defendant cannot be accepted.

32. The issue Nos.4,5 & 6 are considered together though the

learned Senior counsel for the defendant, Mr. Jain has not pressed

issue No.5. The learned counsel for the defendant had contended

that plaintiff has failed to prove that any amount is due from the

defendant to the plaintiff. In the alternative it is contended that

even if, it is assumed that the plaintiff has proved his case, the

liability of the defendant could not be more than the amount

stipulated in the calculation sheet filed on behalf of the defendant.

According to the defendant the amount of three bills allegedly due

from the defendant to the plaintiff are of Rs.27,37,497/-. According

to the learned counsel Mr. Jain, an amount of Rs.13,50,000/- has

been received by the plaintiff in accordance with para 4(h) of the

written statement at page 101 of the pleadings. In the

circumstances, it is contended that the alleged liability after

adjusting the amount already paid will be Rs.13,87,497/-. From

the said liability the learned counsel for the defendant has further

subtracted an amount of Rs.1,01,561/- on account of debit note

exhibit PW.1/8 leaving an alleged liability of Rs.12,85,936/-. The

defendant had allegedly sold the defective sofas for Rs. 12,235/-.

The bill for the sofas was for Rs.2,66,655/-. Therefore an amount

of Rs.2,54,330/- is further deducted by the defendant. According to

him there is no cross examination on this aspect by the plaintiff of

the defendant's witnesses and thus after deducting a further sum

of Rs.2,54,330/- the liability of the defendant cannot be of more

than Rs.10,31,606/-. According to the learned counsel, Mr.Jain

maximum deductible amount for delayed delivery as per clause 14

of the agreement dated 2nd January, 1986 is Rs.25,000/- and,

therefore, the plaintiff is also be liable for a sum of Rs.25,000/-. In

the circumstances it is contended that the defendant is also

entitled for this amount and therefore, the principal amount due

from the defendant to the plaintiff cannot be more than

Rs.10,06,606/- after deducting this amount of Rs.25,000/- , which

can be rounded off to Rs,10,00,000/- and on this amount the

learned counsel has calculated the interest @ 6%, in case the

defendant is held liable to pay interest. The interest from 1st July,

1989 to 30th April, 2007 on an amount of Rs.10,06,606 comes to

Rs.10,70,000/- and, therefore, it is contended that the maximum

liability of the defendant cannot be more than Rs.20,70,000/-. The

learned counsel for the plaintiff has denied these calculations and

has not admitted the same.

33. The amounts of three bills are as follows. Bill

No.RAC/01/87-88 dated 25th April, 1987 for Rs.19,96,607/- which

is exhibit PW.1/17; bill No.RAC/05/87-88 dated 4th May, 1987 for

Rs.4,74,235/- which is exhibit PW.2/6 and bill No.RAC/06/87-88

dated 9th May, 1987 for Rs.2,66,655/- which is exhibit PW.1/12.

These bills had been raised on the defendant and they cannot be

denied. The first two bills relate to the works which were carried

out in the suites of Hotel Leela Venture, Bombay and third bill

relates to supply of 29 sofa sets.

34. The plea of the defendant is that in respect of the work

executed under the first two bills there was delay in execution of

work beyond the specified deadline. Regarding the delay and

unsatisfactory execution the defendant has relied on letter dated

2nd February, 1987 which was exhibited as CW.1/1; letter dated

14th March, 1987 exhibit CW.1/3; letter dated 26th March, 1987

which was exhibited as P-5; letter dated 28th March, 19987 which

is exhibited as P-6; letter dated 4th April, 1987 which is exhibit

CW.1/5; letter dated 4th April, 1987 which is exhibit CW.1/6 and

letter dated 27th April, 1987 which is exhibited as CW.1/8.

35. The copy of letter dated 2nd February, 1987 which is

exhibited as CW.1/1 is by Vice President (Engineering & Projects)

to the plaintiff. This letter was denied by the plaintiff. This letter of

2nd February, 1987 demands from the plaintiff that till the date of

the letter, the work had not been completed and plaintiff was asked

to work out the time schedule and quality of workmanship with

Mrs. Neelam, Chief Interior Coordinator. By letter dated 14th

March, 1987 the Vice President (Engineering & Projects) again

demanded plaintiff to complete the work with urgency and in case

the plaintiff was not able to do so, the defendant would award part

quantity of work to another agency to complete the suites at the

risk and cost of the plaintiff. By letter dated 28th March, 1987,

exhibit CW.1/4, the plaintiff was asked to complete the work in all

respects by 1st April, 1987 failing which 25% of the contract value

was to be deducted as liquidated damages from the amounts

payable to the plaintiff. Exhibit CW.1/5 is again a memorandum

stipulating that the defendant shall be constrained to withdraw

part of the work and hand over to some other contractor and debit

the cost to the account of the plaintiff. Exhibit CW.1/5 was denied

by the plaintiff and it is dated 4th April, 1987.

36. The defense of the defendant is that the plaintiff failed to

adhere to the time schedule for completing the work. From the

evidence led by the plaintiff it is apparent that the work order for

Rs.18,29,635/- was entered on 12th December, 1986 for providing

furniture for 24 hotel suites. The hotel was scheduled to be opened

on 12th April, 1987 and the work was to be completed by 15th

February, 1987. This has also emerged that on 19th December,

1986 the scope of the work was reduced to 12 suites and the

amount was also reduced from Rs.18,27,635/- to Rs.9,13,817/-.

The scope of work was again changed from 12 suites to 26 suites

on 25th February, 1987 on the same terms and conditions. The

work order dated 12th December, 1986 incorporated a liquidated

damage clause to the effect that if the work will not be completed

within the stipulated time, the defendant would have the right to

recover damages at Rs.5000/- per week subject to a maximum of

10% of the work value. While modifying the order reducing the

work to 12 suites by communication dated 29th December, 1986

the complete schedule was revised incorporating that 4 suites will

be completed by 30th January, 1987 and the balance 8 suites will

be completed by 15th February, 1987. While awarding 14 suites

more by communication 25th February, 1987 it was communicated

that the opening of the hotel is on 12th April, 1987 and the work is

to be completed by 31st March, 1987. The question that arises is

whether time in these circumstances was the essence of the

contract or not? Section 11 of the Sale of Goods Act contemplates

that unless a different intention appears from the terms of the

contract, stipulation as to time of payment is not deemed to be the

essence of a contract of sale. This section also contemplates that

whether the time is the essence of the contract depends on the

terms of the contract. Section 54 of the Indian Contract Act also

contemplates that when a party to a contract promises to do a

certain thing on or before a specified time and fails to do any such

thing at or before the specified time, the contract or so much of it

as has not been performed becomes voidable at the option of the

promise, if the intention of the parties was that the time should be

of the essence of the contract. If it was not the intention of the

parties that the time should be of the essence of the contract, the

contract does not become voidable by the failure to do such thing

at or before the specified time; but the promisee is entitled to

compensation from the promisor for any loss occasioned to him by

such failure. It is equally true that if, in case of a contract voidable

on account of the promisors' failure to perform his promise within

the time agreed, the promisee accepts performance of such promise

at any time other than that agreed, the promisee cannot claim

compensation for any loss occasioned by the non performance of

the promise at the time agreed, unless, at the time of such

acceptance, he gives notice to the promisor of his intention to do

so.

37. This also cannot be disputed that mere fixation of a period of

delivery or a time in regard thereto does not by itself make the time

an essence of the contract. The agreement has to be considered in

its entirety and on proper appreciation of the intent and purport of

the clauses incorporated therein. The state of facts and the relevant

terms of the agreement ought to be noticed in its proper

perspective so as to assess the intent of the parties. The agreement

must be read as a whole with corresponding obligations of the

parties so as to ascertain the true intent of the parties. In M/s

Arason Enterprises Ltd v. Union of India and Another, (1999) 9

SCC 449 the Apex Court had held that it is well settled that when

the contract itself provides for extension of time, the same cannot

be termed to be the essence of the contract and default in such a

case does not make the contract voidable. It becomes voidable

provided the matter in issue can be brought within the ambit of the

first paragraph of Section 55 of the Contract Act and it is only in

that event that the claimant would be entitled to claim damages

and not otherwise. This has been established that on 12th

December, 1986 the order was for providing furniture for 24 suites

which was altered and restricted to providing furniture for 12

suites comprising of 6 executive suites, 3 junior suites and 3

deluxe suites before 15th February, 1987. There was further

alteration on 25th February, 1987 for providing furniture in 14

more suites comprising of 4 deluxe suites, 4 junior suites and 6

executive suites. The work for 12 suites awarded pursuant to order

dated 29th December, 1986 was not completed by 15th February,

1987. Still work for 14 new suites was awarded on 25th February,

1987. This is not the case of the defendant that the contract for 12

suites which was to be completed by 15th February, 1987 was

independent of the contract for the 14 additional suites which was

to be completed by 31st March, 1987. The evidence led on behalf of

the plaintiff has not been refuted, as the witness who has appeared

on behalf of defendant has deposed only on the basis of record, not

having personal knowledge of the facts or of the defendant's

documents. The defendant has not contended that these were

separate agreements. The inevitable inference is that there were

alterations in the terms of the agreement in respect of the scope

and consequently the time was also extended from 15th February,

1987 to 31st March, 1987. The time was extended on account of

awarding more work and because the defendant had also failed to

carry out his obligations. By letter dated 28th March, 1987 which

has been proved as exhibit P6 which was admitted by the

defendant, the time was again extended till 1st April, 1987. It was

also communicated to the defendant that no further extension of

time will be granted. However, on the same day the plaintiff had

written a letter to the Vice President of the defendant pointing out

that the plaintiff was instructed to carry out the upholstery work

by 31st March, 1987 but the upholstery cloth for Junior suits and

Executive suits has not been decided. The plaintiff further revealed

that he had done upholstery on 12 dinning chairs and 4 pelmets of

junior suites. It was also pointed out that due to change in

decision, the plaintiff had been asked to remove the upholstery

already done. The plaintiff also complained that even the tapestry

had not been finalized, therefore, how he can be asked to complete

the work within time. The said letter dated 28th March, 1987 had

been exhibited as Exhibit Pw 5/2 and cogent evidence has been led

regarding this letter. The letter has not been refuted in the cross

examination nor the witnesses of the defendant deposed that the

letter was not received by the defendant. Till 7th April, 1987 various

material which had to be provided by the defendant had not been

delivered to the plaintiff, which is apparent from the letter dated 7th

April, 1987 addressed to Vice President of the defendant which

letter was proved and exhibited as Ex. Pw5/3. By said letter the

plaintiff had asked for material e.g Marble for dinning Table Top in

all Deluxe suites; Marble for all fridge cabinet in all suites; Marble

for side board (Cardenza) in Deluxe and Junior suites; upholstery

cloth for lounge chair, dinning chairs and head board in deluxe

suites. It was pointed out by the plaintiffs that unless this material

is supplied, the plaintiff shall not be in a position to complete the

work of the suites. From these facts it is apparent that the time to

finish the work was extended by the defendant on account of

enlargement of scope of work and also because of defendant's

failure to carry out his obligation.

38. The Apex Court in R.N.Kumar v. R.K.Solan, (198) 2 SCC 508

had held that whether in any particular case there was a complete

novation of a contract in the sense that a new contract replaced or

substituted the old contract, would depend upon the facts and

circumstances of the case. The work order dated 12th December,

1986 incorporated the liquidated damage clause of Rs.5000/- per

week subject to the maximum of 10% of the contract value which

was not changed while altering the contract and changing the

scope of work from 24 suites to 12 suites on 29th December, 1986.

The scope of work was again modified and 14 more suites were

added on 25th February, 1987. Again the liquidated damage clause

was not modified and remained the same. From the totality of the

facts and circumstances it is apparent that there was alteration in

the terms of the contract but it was not the novation of the

contract.

39. From the evidence led by the parties, it is also inferable that

plaintiff's plea that the delay was on account of acts on the part of

the defendant and imputable to the defendant, has not been

refuted successfully by the defendant. The plaintiff and his

witnesses have deposed that the delay was on account of many

acts on the part of the defendant such as that the designs for the

furniture was not finalized till mid February, 1987; materials were

not made available on time; the suites in which the furniture was

to be installed were not made available as civil work was not

completed and the carpets etc. not laid; the security personnel of

the defendant did not allow the workers of the plaintiff to work

round the clock; the part of the work which was completed was

asked to be redone. There is no reliable evidence on behalf of the

defendant to counter the cogent evidence led on behalf of the

plaintiff. The learned counsel for the plaintiff has also relied on

letter dated 16th February, 1987 from plaintiff to the Chairman of

the defendant stating that the drawings had been received on 10th

February, 1987 only and it would take 10 to 15 days time to get

the furniture manufactured. This letter dated 16th February, 1987

has been proved as exhibit PW.2/1. The reliance has also been

placed on letter dated 25th March, 1987 exhibited as PW.5/1

complaining to the defendant that work cannot be completed

within the time as the security personnel of the defendant had not

been allowing the workers of the plaintiff to work day and night.

The plaintiff had also written a letter dated 28th March, 1987

complaining about the change in decision and to remove the

upholstery already done. The letter was exhibited as PW.5/2.

Therefore, it cannot be held that delay was on the part of the

plaintiff only and was on account of lapses on the part of the

plaintiff.

40. Though in the pleadings the defendant have raised a counter

claim for money spend for the rectification of the alleged defective

work of the plaintiff. However, no evidence has been led on this

plea. The defendant had claimed cartage of furniture of two suites,

administrative cost of coordination, non supply of items and

damages to hotel carpets to the extent of Rs.2,52,000/-, however

none of these pleas have been proved. Even the learned counsel for

the defendant during the arguments restricted the claim of

damages on account of the work not having been completed within

the stipulated time to Rs.25,000/- only. On the consideration of

the depositions of the plaintiffs and the defendant and the terms of

the contract, therefore, it cannot be held that the time was the

essence of the agreement and the delay was solely attributable to

the acts on the part of the plaintiff and imputable to the plaintiff.

In the circumstances, the defendant cannot be allowed Rs.25,000/-

towards the damages as has been claimed by the defendant and

consequently the issue No.4 is decided against the defendant.

41. The learned counsel for the defendant had also not pressed

the issue No.5 regarding plaintiff's work being sub-standard and

unsatisfactory for the required standard of a five star hotel. From

the evidence adduced on behalf of the defendant, it has not been

established that the work of the plaintiff was sub-standard and

unsatisfactory for a five star hotel and was not according to

specification and was of inferior quality. Consequently, the issue is

decided against the defendant. Therefore, the defendant is not

entitled to deduct any amount from the amounts due to the

plaintiff on account of alleged sub standard and unsatisfactory

work of the plaintiff.

42. The plaintiff had also provided 29 sofa sets which are alleged

to be not conforming to the contracts and according to the

defendant the plaintiff was directed to remove them on 18th May,

1987 and thereafter the defendant stored them for two years for

which an amount of Rs.14 lakhs has been claimed as warehouse

charges and thereafter the 29 sofa sets were alleged to have been

sold for Rs.12,325/-. The written statement on behalf of the

defendant has not been filed by a duly authorized person and

therefore, the pleas of the defendant cannot be accepted. The

defendant has failed to establish that the sofa sets were not

according to the specifications and were of inferior quality. The

defendant has failed to give the alleged specifications. The

defendant has also failed to establish that any samples were given

and the sofa sets ought to have been manufactured according to

the samples allegedly given by the defendant. The plea of the

defendant that the sofa sets were sold for Rs.12,325/-and the

plaintiff is only entitled for the said amount, cannot be accepted in

the facts and circumstances. The learned counsel for the plaintiff

had referred to a magazine and has contended that the

photographs show that the sofa sets, in fact, are used by the

defendant in his hotel. On the basis of the alleged magazine, it

cannot be inferred that the sofa set had not been sold by the

defendant by they are used in the hotel. However, this cannot be

disputed that the sofa sets were received by the defendant and

unless the defendant had established that they were of inferior

quality and were not according to the specifications, the defendant

shall be liable for the price of goods received by the defendant. The

issue is thus decided in favour of plaintiff and against the

defendant holding that the defendant shall be liable for the price of

29 sofa sets.

43, Issue No.8 pertains to as to what amount plaintiff is entitled

towards principal and interest.

The plaintiff is entitled for a principal sum of

Rs.12,85,936.00. This amount comprises of amount of three bills

of Rs.19,96,607.00; Rs.4,74,235 and Rs.2,66,655, a total amount

to Rs.27,37,497 and after deducting the amount already received,

Rs.13,50,000 and an amount of Rs.1,01,561, the debit note Ex Pw

1/8 admitted by the plaintiff.

44. To what amount of interest the plaintiff is entitled and from

which date the amount became due. From the perusal of the

plaint, it is apparent that the plaintiff has not claimed any interest

from the date the amounts became due to the plaintiff from the

defendants. Neither the amount of interest due till the institution

of the plaint is calculated nor it has been pleaded specifically nor

any court fees has been paid on the amount of interest which

allegedly had become due to plaintiff from the defendants till the

institution of the suit. The amount had become due to the plaintiff

from the date of the raising of the bills as no credit period is

provided. Part payment had also been made by the defendant to

the plaintiff. To claim interest the learned counsel for the plaintiff

has relied on a number of precedents regarding award of interest.

The reliance has been placed on AIR AIR 1996 Bombay 293, Satish

Solvant Extraction Pvt. Ltd. v. New India Assurance Company

Limited; AIR 2000 Delhi 42, Yogesh Kanth Bagheria v. Deepak

Jain; (1997) 10 SCC 472, Shreni Jhaveri v. A.K. Menon and

Others; (2003) 9 SCC, K.T. Venkatagiri and Others v. State of

Karnataka and Others; AIR 2003 Supreme Court 3411, Aditya

Mass Communication Pvt. Ltd. v. A.P.S.R.T.C. and (2004) 2 SCC

297, DDA and others v. Joginder S Monga and Others.

45. Perusal of the precedents relied on by the plaintiff reflect that

they pertain to grant of pendente lite and future interest under

Section 34 of the Code of Civil Procedure. None of the judgments,

however, has held that even if the plaintiff has not claimed interest

till the date of filing/institution of the suit, the same be awarded to

him. For claiming the interest till the date of filing of the suit, the

plaintiff was to state the amount of interest in plaint and ought to

have paid court fees on the amount of interest claimed till the date

of filing. In absence of any claim for interest prior to the date of

institution and without paying court fees on the same, it is not

appropriate to award any amount of interest till the date of filing of

the suit.

46. This cannot be disputed that under Section 34 of Code of

Civil Procedure the courts have discretion both in the matter of the

grant of interest and rate of interest. The power to grant pendente

lite and future interest is not dependent upon a specific claim

being made by the plaintiff. Ordinarily, the interest pendente lite is

granted under Section 34 of the Code of Civil Procedure unless

there are cogent reasons for depriving the plaintiff of interest

during trial.

47. In Satish Solvant Extraction Pvt. Ltd. (supra), a Division

Bench of the High Court had held that ordinarily pendente lite

interest can be granted under Section 34 of the Code of Civil

Procedure, unless there are cogent reasons for depriving the

plaintiffs of the interest during trial. However, the discretion in the

matter of future interest is restricted to 6% per annum except in

commercial transactions where under the proviso it may be allowed

at the contractual rate or bank rate in relation to the said

transaction. A Division Bench of this Court in Yogesh Kanth

Bagheria (supra) had held that in a suit for recovery of loan despite

no contract being there regarding payment of interest, the plaintiff

can still be awarded interest at the current rate as defined under

Section 2(6) of the Act. The precedent relied on by the plaintiff,

however, has not held that even if the interest till the time of the

institution is not claimed, the same can be awarded under Section

2(6) of the Act or any other provisions. The precedent, Ghaziabad

Development Authority (supra) relied on by the plaintiff is

regarding awarding of 18% interest at uniform rate by the National

Commissioner, which was held to be unsustainable.

48. In K.T. Venkatagiri (supra) relied on by the plaintiff, the Apex

Court had held applying the doctrine of unjust enrichment that the

appellants in that case could not retain the amounts received

directly or indirectly by them on account of MSIL by taking

advantage of conditional interim order and they were directed to

pay the amount back with interest at 18% per annum and

thereafter interest @ 9% per annum. The case of the plaintiff is

apparently distinguishable. The judgment was passed by the Apex

Court in appeals which were filed challenging the orders passed in

a batch of writ petitions and is apparently distinguishable from the

case of the plaintiff which is a suit for recovery where no interest

has been claimed till the date of institution of the suit. Similarly in

Aditya Mass Communication (P) Ltd. interest was awarded in a writ

petition and the order was challenged before the Apex Court where

it was held that the award of interest @ 12% by the Trial Court was

reasonable.

49. Considering the precedent relied and the facts and

circumstances, therefore, the plaintiff is not entitled for interest

prior to the institution of the suit, however, as far as the pendente

lite and future interests is concerned which is awarded under

Section 34 of the Code of Civil Procedure, the plaintiff is entitled for

the same. Considering the evidence led by the parties and other

facts and in totality of circumstances, the plaintiff is awarded

simple interest @ 9% per annum from the date of institution till the

recovery of the amount from the plaintiff.

The issue is decided accordingly.

50. In the circumstances, the suit of the plaintiff is decreed for

recovery of a sum of Rs.12,85,936.00 (Rupees twelve lakhs eighty

five thousand nine hundred and thirty six) along with pendent lite

and future simple interest at the rate of 9% per annum from the

date of institution of the suit till the realization of the decreetal

amount. The plaintiff is also awarded cost of Rs.20,000/- in the

facts and circumstances. Decree sheet be drawn.

April 13, 2009. ANIL KUMAR J.

'Dev/k'