Delhi High Court
Shr. N.L.Goyal vs M/S. Mkr Frozen Food Exports (P) ... on 2 February, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.109/2001
% 2nd February, 2011
SHR. N.L.GOYAL ...... Appellant
Through: None.
VERSUS
M/S. MKR FROZEN FOOD EXPORTS (p) LTD. ...... Respondent
Through: None
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the 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?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the Regular Board of this Court since 3.1.2011
and today is effective item no.6 on the Regular Board. It is 3:15 pm. No one
appears for the parties. I have therefore gone through the record and am
proceeding to dispose of the matter.
2. The challenge by means of this Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment
and decree dated 1.11.2000 whereby the suit for recovery of the
appellant/plaintiff was dismissed. The suit was for recovery of Rs.1,07,200/-
RFA No.109/2001 Page 1 of 5
for professional charges rendered by the appellant to the respondent with
respect to the job of designing, structural design supervision and assessing
the quality of work of construction of the factory of the respondent. It was
claimed that professional charges of Rs.50,000/- were paid leaving a balance
of Rs.32,000/- and for the out of pocket expenses of Rs.45,000/- payable,
only a sum of Rs.10,000/- was paid thus leaving a balance of Rs.35,000/-.
The appellant/plaintiff claims that he had rendered all required services and
since the respondent/defendant failed to pay the balance amount due hence
the suit for recovery was filed. The respondent appeared and contested the
case. The case of the respondent was that there was no amount payable to
the appellant and the figures of Rs.82,000/- and Rs.45,000/- towards
professional fee and out of pocket expenses were self-generated figures
which were not agreed to by the respondent/defendant. It was the further
stand of the respondent/defendant that the services of the appellant were
terminated on 12.6.91 because the appellant was guilty of negligence in
performing his professional duties whereby it was found that there were
cracks in the roof of the building and that payments were recommended to
the contractor without checking the quality, specifications and drawings. It
was argued that nothing was due to the appellant who had been paid the
complete dues.
3. The Trial has referred to the fact that there is no written contract
showing the agreement to pay Rs.82,000/- and Rs.45,000/- respectively
towards professional fee and out of pocket expenses as claimed by the
RFA No.109/2001 Page 2 of 5
appellant. The Trial Court has also noted that although the appellant/plaintiff
claimed the contract to be in writing, the said contract was not filed and
proved on record. The Trial Court has also referred to the delay of the
appellant in getting released the sanctioned plan. The relevant paragraphs
18 to 21 of the impugned judgment and decree read as under:-
"Ex.PW1/1 to 3 are the building plans. These bear the date
of sanction as 18.8.90. Ex.PW1/4 is the fee receipt for the
building plans. Amazingly, it is dated 23.1.91. Ex.PW1/5 is
the letter of sanction plan. It is dated 22.8.90.
19. From the contents of Ex.PW1/6 to 8 dated 2.7.9,
12.6.91 and 13.6.91 respectively; it is found that the
plaintiff admitted that the work was almost
complete/abandoned and for the remaining work
Rs.7,000/- be retained and Rs.60,000/- be cleared to him,
i.e. Rs.25,000/- of professional charges and Rs.20,000/- out
f pocket expenses and over head expenses. It seemed to
be backlash of letter dated 11.6.91 Ex.PW1/D24 written b
the defendant wherein negligence was imparted upon the
Architect in not performing its professional duties in due
diligence and further recommending payments to the
contractor (H.S.Punnu PW2), without checking the quality,
specification and drawings. To the legal notice Ex.PW1/11
it was specifically denied that any amount was due and
payable and it was replied that as per letter dated
11.6.91(Ex.PW1/D23), the services of the Architect were
terminated; that only 70% work was completed but that
too had caused damages/cracks to the defendant
construction.
20. Evidently, the plaintiff did not carry any work after
1.2.91. In its own letter dated 1.2.91, the plaintiff has
mentioned "That the work of your factory is in completion
stage and we have provided you all the necessary
drawings and assistance in supervision also. We have so
far received an amount of Rs.50,000/- against our total
professional fee of Rs.82,000/- calculated on the basis of
covered area. May we request you to kindly send us a
further payment of Rs.20,000/- as our running professional
fee. An early action in this matter will be highly
appreciated." The contents of above letter can be taken as
proved for the reason that the same has been filed by the
RFA No.109/2001 Page 3 of 5
plaintiff itself and finds mention in para 13 of the plaint. As
its contents show it did not mention at all about „dues‟ t be
paid by the defendant as out of pocket expenses and over
head expenses. It simply specifies and confined the case
of the plaintiff to the professional fee. Thus, it won‟t be
safe to infer that any out of pocket expenses and over
head expenses were payable as on 1.2.91 to the plaintiff
by the defendant, regarding sanctioning of and providing
of building. Plan/drawings etc. As recorded above, the
building work started sometimes on 26.3.90(Ex.PW1/D4),
whereas the building plan Ex.PW1/1 to 3 was sanctioned by
the concerned authorities on 18.8.90 and sanctioning letter
on 22.8.90. The fee in this respect was paid on
23.1.91(ex.PW1/4). How come that the plaintiff was still
retaining the possession of these documents and also
claimed charges for the same? It remains a mystry.,
whereas the defendant vide Ex.PW1/D24 imparted the
gross negligence on the part of the plaintiff in performing
its professional duties and further recommending improper
payment to the contractor(PW2). Taking into account the
contents of Ex.PW1/6; it is obvious that the plaintiff had
abandoned the work even before the receipt of
Ex.PW1/D24 letter dated 11.6.91.
21. In the light of the above, I am of the opinion that for
paucity of evidence, the plaintiff had failed to establish that
the defendant was liable to pay any out of pocket
expenses or over head expenses to the plaintiff and
secondly that the defendant was liable to pay either
Rs.32,000/- or Rs.25,000/-, the professional charges/fee.
Even otherwise, for the abandoned work, the plaintiff at
the most could claim proportionate damages. Neither, this
is the case of the plaintiff nor the damages are
quantifiable." (Emphasis added)
4. I do not find any illegality or perversity in the impugned
judgment and decree which calls for interference by this Court. This Court is
entitled to interfere with the impugned judgment and decree only if the view
taken by the Trial Court is completely perverse or causes grave injustice.
Neither is there any illegality nor any perversity found in the impugned
judgment and decree and nor has any injustice, much less grave injustice
RFA No.109/2001 Page 4 of 5
been caused to the appellant. Appeal being devoid of merits, is therefore
dismissed, leaving the parties to bear their own costs. The Trial Court
Record be sent back.
February 01, 2011 VALMIKI J. MEHTA, J.
ak
