Delhi High Court
Union Of India & Ors. vs M/S. Adwave on 15 April, 2009
Author: Sanjay Kishan Kaul
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 12.03.2009
% Date of decision: 15.04.2009
+ RFA (OS) No.5 of 1993
UNION OF INDIA & ORS. ...APPELLANTS
Through: Ms. Avnish Ahlawat, Ms. Latika
Chaudhary & Mr. Saurabh
Chadda, Advocates.
Versus
M/S. ADWAVE ...RESPONDENT
Through: Mr. R.K. Watel, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
SANJAY KISHAN KAUL, J.
1. The plaintiff (i.e., respondent herein) filed a suit on the
Original Side of this Court for recovery of Rs.1,33,089/- with
pendent lite interest @ 18% per annum and future interest
on the decretal amount @ 18% per annum till realization,
with costs. In terms of the impugned order dated
08.12.1992, the suit has been decreed in favour of the
plaintiff for a sum of Rs.63,700/- with proportionate costs
and interest @ 12% per annum from date of the suit till
realization.
2. The case of the plaintiff as averred in the plaint is as under.
3. The plaintiff in the suit is a registered partnership firm
carrying on the business of construction of buildings and
publicity agents. Ms. Komal G.B. Singh is one of the
partners and Managing Partner of the plaintiff firm, who
was competent and authorized to file the suit and sign and
verify the pleadings.
4. The plaintiff was entrusted the work of construction of the
Delhi Police Pavilion at Pragati Maidan, New Delhi with a
stipulation that the work was to be completed by
13.11.1981. There were 3 works regarding which offer was
given by the plaintiff on 30th and 31st October, 1981. One of
the works was in respect of labour and raw materials etc.
for which the estimate of Rs.75,000/- was given, which was
reduced after negotiations with the concerned authorities
to Rs.70,700/-. The second estimate was for a sum of
Rs.73,000/- for creative work and this amount was reduced
after negotiations to Rs.63,000/-. The third estimate was
for production of A.V. and hire equipment for the Delhi
Police Pavilion at the India International Trade Fair, 1981 for
a sum of Rs.48,300/-, which was reduced after negotiations
to Rs.41,300/-. The plaintiff had also stipulated in respect
of all the three works that 50% payment would be made
immediately, 25% of the balance on 10.11.1981 and the
balance on 14.11.1981.
5. The work was started by the plaintiff after negotiations,
though letter dated 12.11.1981 (Ex. P-1) was issued by the
Commissioner of Police, Delhi under the signatures of
Deputy Commissioner of Police, Headquarters- I, Delhi to
the effect that the job was allotted to the plaintiff in terms
of the estimates, revised by the plaintiff. It was further
provided in the letter that the work should be executed in
accordance with the specifications and designs and the
work was to be completed by 13.11.1981.
6. It was further claimed by the plaintiff that besides the work
mentioned in the said three estimates, the plaintiff was
required to carry out additional work of the value of
Rs.28,089/- as per the details mentioned in para 3 (wrongly
shown as para 4) of the plaint. The plaintiff pleaded that
the work was completed as per the agreement by due date
for the exhibition and a sum of Rs.50,000/- was received by
the plaintiff on 06.11.1981 and another sum of Rs.20,000/-
on 09.11.1981. It was also pleaded that the balance
amount of Rs.1,05,000/- was due to the plaintiff on
14.11.1981, which had not been paid out of the agreed
contract and another sum of Rs.28,089/- for the additional
work. It was also claimed that notice under Section 80 of
the Civil Procedure Code, 1908 was issued to the
defendants making a demand of the amount of
Rs.1,33,089/-.
7. The defendants (i.e., appellants herein) contested the suit
by filing a written statement. A preliminary objection was
raised for want of knowledge that the plaintiff was a
partnership firm and Ms. Komal G.B. Singh was competent
to sign and verify the suit. However, it was admitted that
the work with regard to the Police Pavilion at the India
International Trade Fair, 1981 was awarded to the plaintiff
and that the fair was to commence from 14.11.1981 till
04.12.1981. It has also been admitted that after inviting
tenders, negotiations took place with the plaintiff and work
for the total sum of Rs.1,75,000/- was awarded to the
plaintiff. It was claimed that to facilitate the start of the
work immediately by the plaintiff, a sum of Rs.50,000/- was
paid on 06.11.1981 and another sum of Rs.20,000/- was
paid on 09.11.1981. It was also claimed that instead of
completing the work, it was left in between on 12.11.1981.
It was further averred that on account of the work being left
incomplete by the plaintiff, the inauguration of the Police
Pavilion had to be postponed to 16.11.1981 and the work
was got completed with great difficulty from another firm
viz. M/s. Architects Forum. It was pleaded that that no
additional work was either assigned or carried out by the
plaintiff. It is, in these circumstances, that the claim of the
defendants that nothing was due to the plaintiff and so a
prayer was made that the suit may be dismissed.
8. On the basis of the pleadings, the following issues were
framed on 06.02.1986 :
1. Whether the plaintiff is a registered
partnership firm and Ms. Komal G.B. Singh is a
registered partner competent to file the
present suit? OPP.
2. Whether the plaintiff executed the total work
of construction of Delhi Police Pavilion? It if,
what was the extent of the work not
completed? OP Parties.
3. Whether the defendant asked the plaintiff to
execute additional work referred to in para 3
of the plaint? OPP.
4. If issue No.3 is held in favour of the plaintiff, to
what amount is the plaintiff entitled for the
additional work? OPP.
5. To what amount is the plaintiff entitled? OPP.
6. Whether the plaintiff is entitled to any interest,
if so at what rate? OPP.
7. Relief.
9. In support of its case, the plaintiff examined Shri Rajeev
Mehrotra as PW-1, Ms. Komal G.B. Singh, partner of the
plaintiff firm as PW-2 and Mr. Siddharth Basu as PW-3. The
defendants in support of their case examined Mr. Maxwell
Pereira as DW-1, who was at the relevant time Deputy
Commissioner Police, Delhi State Industrial Development
Corporation in 1981, Mr. M.B. Kaushal as DW-2, who was
Addl. Commissioner of Police (Admn.), Delhi Police in
August 1981 and Shri Ravinder Chaudhury, Sole Proprietor
of M/s. Architects Forum as DW-3.
10. The learned Single Judge has held Issue No. 1 in favour of
the plaintiff. It has been noted that the originals of Ex. PW-
2/1 (photocopy of the Certificate of Registration) and Ex.
PW-2/2 (photocopy of the certificate issued by the Registrar
of Firms) were brought by the witness (PW-2) when she was
examined. The learned Single Judge has also noted that
there was nothing on record to show that the plaintiff was
not a registered partnership firm.
11. The learned Single Judge has, after perusing the pleadings
and the evidence placed on record, held in respect of Issue
No. 2 that the plaintiff had completed the work in respect of
Item Nos. 1 & 2 in time, but the plaintiff could not claim any
amount in respect of Item No. 3. The learned Single Judge
has noted that Ms. Komal G.B. Singh had made a
categorical statement that the work of labour and raw
material as well as creative work had been completed on
12.11.1981 and that bills were sent to the defendants and
in spite of demand, the balance had not been paid. The
learned Single Judge has also taken note of the letter dated
21.11.1981 (Ex. P-14) which was sent by the plaintiff to the
Commissioner of the Police, receipt of which had been
admitted by the defendants. A perusal of this letter showed
that the plaintiff had claimed having completed 2 works
and a demand was made of the balance amount and bills
for a sum of Rs.35,700/- and Rs.28,000/- were sent
respectively along with the said letter. It has been taken
note of by the learned Single Judge that there has been no
reply to this letter. A categorical finding was recorded by
the learned Single Judge that the relevant record indicating
how much work had been done by Mr. Ravinder Chaudhury
for the plaintiff and how much work was done by Mr.
Ravinder Chaudhury at the instance of the Commissioner of
Police had not been produced and the defendants did not
take any steps to get the work carried out by the plaintiff
assessed before Mr. Ravinder Chaudhury was asked to
carry out further work. Even photographs of the work
carried out by the plaintiff had not been taken. The learned
Single Judge has also taken note of the letter dated
02.12.1981 (Ex. P-16), written by the plaintiff to the
Commissioner of Police, in which a prayer was made to
preserve the work carried out by the plaintiff till the
accounts were settled and the details of the work carried
out by the plaintiff were mentioned therein. No action was
taken on this letter. The learned Single Judge has held that
there was no cogent and/or reliable material produced by
the defendants to indicate that the work was not completed
and how much work was left incomplete and, thus, it was
held that the work in respect of Item Nos. 1& 2 was
completed. In respect of Item No. 3, the learned Single
Judge has noted that there was no detailed information
about the number of slides / tapes as also the fact that the
plaintiff had written a letter dated 02.12.1981 (Ex. P-16) not
claiming anything in respect of this work.
12. The learned Single Judge has dealt with Issue Nos. 3 & 4
together and the same have been decided against the
plaintiff. It has been observed by the learned Single Judge
that the plaintiff has not produced any evidence in proof of
having done additional work and hence the plaintiff has
been unable to prove the issue.
13. In regard to Issue No. 5, the learned Single Judge has held
that the plaintiff is entitled to the amount of Rs.63,700/-
being the balance amount payable in respect of Item Nos. 1
& 2.
14. In respect of Issue No. 6, the learned Single Judge has
granted interest @ 12% per annum taking note of the fact
that the transaction was a commercial one and that the
amount had not been paid by the defendants in spite of the
demand having been made by the plaintiff.
15. In respect of Issue No. 7, the suit of the plaintiff has been
decreed for a sum of Rs.63,700/- with proportionate costs
and interest @ 12% per annum from date of the suit till
realization.
16. The learned counsel for the appellant has sought to assail
the finding of the learned Single Judge in respect of Issue
No.2 and consequently the decree which has been passed
in favour of the respondent.
17. The learned counsel for the appellant submitted that there
was no evidence on record to show that the Pavilion was
made ready by the respondents on 13.11.1981 except the
bald statement of PW-2. It was further submitted that since
the learned Single Judge had disbelieved the statement of
the said witness on the aspect of additional work and AV,
her bald statement that the pavilion was completed on
13.11.1981 could not have been accepted. Reliance was
also placed on the cross-examination of PW-2 where it was
admitted that for part of the work Item No. 1 in Ex. P-1, M/s
Architect Forum was engaged by her. It was further
pleaded that PW-2 admitted that in her letter sent to the
police, she did not mention about the happenings of 13 th,
14th and 15th November, 1981.
18. The learned counsel for the appellant also submitted that
the work had to be done by the respondent as per Ex. P-1
and Ex. D-1, D-2 and D-3 were only estimates. A reference
in this regard is made to the cross-examination of PW-2 and
DW-3. It was further submitted that Ex. D-1, D-2, and D-3
were estimates and after negotiations, the contract was
finalized between the parties was Ex. P-1.
19. The learned counsel for the appellant also submitted that
the respondent was not returning some important
documents of the Police Department and that an FIR was
lodged and the documents were recovered and later on
legal advice, the matter was not pursued further.
20. The learned counsel for the appellant also placed reliance
on the evidence of Shri Maxwell Pereira (DW-1) where the
said witness in his cross-examination has given the details
about the estimate of the work done by the respondent and
why persons from other pavilions could not be called for as
everybody was hard pressed for time. Reliance was also
placed on the affidavit of Sh. M.B. Kaushal (DW-2), which
mentions the contract in question and the respondent
leaving the same in between.
21. The learned counsel for the respondent submitted that the
respondent had completed the entire work entrusted to it
and has filed various documents and also produced three
witnesses in support of the same. Reliance was placed
upon Ex. P-2, P-13, P-14, P-16 & P-17, which have been
proved by PW-2, being the Managing Partner of the
respondent firm. It was also submitted that the appellants,
despite having been intimated, did not come forward to
take possession of the pavilion. It was further submitted
that the whole controversy arose as the appellants wanted
the respondent to do some additional work without any
payment to which the respondent did not agree and to
further harass the respondent, a false FIR was filed which
was not pursued later on.
22. The learned counsel for the respondent also submitted that
the claim of the appellants that the work had not been
completed is without any supporting documents and is only
based on bald statements. A reference was made to the
cross-examination of DW-3, where the said witness on
being shown Ex. D-1, D-2 and D-3 admitted that the work
shown in the said documents / orders had nothing to do
with the job that was assigned to him by the Police
Department and that he did the job of display boxes for the
appellants which is not part of Ex. D-1, D-2, and D-3.
23. The learned counsel for the respondent also placed reliance
upon the fact the request of the respondent, which was
made to the appellants, that the work executed by the
respondent should be preserved, was not acceded to. A
reference in this regard is made to Ex. P-16 where the same
has been stated.
24. The learned counsel for the respondent also submitted that
it had claimed the amount for works executed in terms of
Ex. P-1 relating to three items and also for a fourth item,
i.e., additional work and that the learned Single Judge has
upheld the claim for the first two items and the claim for
the third item was disallowed as the respondent / plaintiff
had not furnished detailed information about the number of
slides / tapes of audio visual work as also the respondent
had written a letter dated 02.12.1981 (Ex.P-16). The claim
of additional work was also disallowed for want of evidence.
25. Lastly, it was submitted that the learned Single Judge had
exhaustively dealt with the documents and evidence
produced by the parties and that there no was no infirmity
with the impugned order and hence, the appeal should be
dismissed.
26. In our considered view, the submission of the learned
counsel for the appellants that there is no evidence on
record to show that the Pavilion was ready on 13.11.1981 is
without any merit. The learned Single Judge has correctly
taken note of the fact that the respondent had sent a letter
dated 21.11.1981 (Ex. P-14) to the Commissioner of Police,
claiming to have completed two works and a demand was
made of the balance amount. Bills for a sum of Rs.35,700/-
and Rs.28,000/- were also sent alongwith the said letter
after giving adjustment for the amount received in
advance. The appellants did not even reply to this letter.
The learned Single Judge has also taken note of the fact
that the respondent had sent a letter dated 2.12.1981 (Ex.
P-16) to the Commissioner of Police, in which a request was
made to preserve the work carried out by the respondent
till the accounts were settled and details of work carried out
by the respondent were mentioned/recorded. Another
letter dated 17.12.1981 (Ex. P-17) was sent by the
respondent to the Commissioner of Police, asking for
payment of the balance amount but to no avail. The
learned Single Judge has also taken note of the cross-
examination of Mr. Ravinder Chaudhury (DW-3), where a
suggestion was put to him that he was to be paid a sum of
Rs.50,000/- for carrying out the work envisaged in Item No.
1 and part of the work envisaged in Item No. 2 of Ex. P-1 to
which the answer was that he did not remember correctly.
In view of the above facts, it can hardly be said that there
was no evidence on record to prove that the respondent
had completed the work on 13.11.1981.
27. It is the admitted position that Ex. D-1, D-2 and D-3 were
only estimates. It has been correctly observed by the
learned Single Judge that Ex. P-1 is an approval of the three
estimates given by the respondent to the appellants. In Ex
P-1, it has been stated that the work should be executed in
accordance with the specifications and designs laid down in
the quotations and also given by the Committee. Hence,
the said letter (Ex. P-1) itself makes it clear that the work
had to be done as per the quotations.
28. In so far as the submission of the learned counsel for the
appellants that an FIR had been lodged and later on legal
advice, the matter was not pursued further, the learned
Single Judge had correctly noted that even a copy of the
challan had not been filed in Court. Since neither any
evidence has been produced in this respect more
particularly when the said matter was not pursued further
nor any categorical finding has been recorded by the
learned Single Judge, the same is liable to be ignored.
29. The learned counsel for the appellants placed reliance on
the evidence of Sh. Maxwell Pereira (DW-1) and Sh. M.B.
Kaushal (DW-2) to contend that the respondent did not
complete the work as per the contract and why persons
from other pavilions could not be called. In our considered
view, the appellants have not produced any evidence other
than mere statements of their witnesses to contend that
the work had not been completed on 13.11.1981. No
evidence has been brought on record to show the amount
of work which had been carried out by Mr. Ravinder
Chaudhury (DW-3) for the respondent and at the instance
of the Commissioner of Police. The appellants did not even
care to take photographs of the work carried out by the
respondent or to preserve the same even though the
respondent had sent a letter dated 2.12.1981 (Ex.P-16)
asking for the same.
30. In view of the aforesaid, we find no merit in the appeal and
the same is dismissed with costs of Rs.25,000/-.
SANJAY KISHAN KAUL, J.
APRIL 15, 2009 SUDERSHAN KUMAR MISRA, J.
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