M/S Roshan Lal Vohra & Sons vs M.C.D & Anr
2011 Latest Caselaw 2936 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 31.05.2011

+           CS(OS) No. 396/2010

M/S ROSHAN LAL VOHRA & SONS                    .....Plaintiff

                           - versus -

M.C.D & ANR                                 .....Defendants

Advocates who appeared in this case:
For the Plaintiff:      Mr. J.P.Gupta, Adv.
For the Defendant:      Ms. Suparna Srivastava, Adv.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                         No

2. To be referred to the Reporter or not?                  No

3. Whether the judgment should be reported                 No
   in Digest?

V.K. JAIN, J. (ORAL)

1. This is a suit for recovery of Rs.20,22,600/-. The

plaintiff was awarded work by the defendants vide letter

dated 22.6.2005. The work was completed within the period

stipulated in the agreement in this regard. Under the

agreement, the plaintiff was entitled for payment of Running

Bill in every month and Final Bill within six months from

the date of completion. The eighth Running Bill passed by

defendant No.2 who is the Executive Engineer of MCD was

of Rs.15,07,607/- and the cheque amount of the aforesaid

bill was Rs.14,29,299/-. However, against the said

payment, the defendants paid only amount of

Rs.1,85,020/- to the plaintiff. The balance of the Eighth

Running Bill was not paid by the defendant on the ground

that the funds were not available under the relevant head.

The balance amount of the Running Bill was Rs.12,44,279/-

The final bill, i.e., ninth bill was for Rs.1,71,773/- and was

passed for payment of Rs.1,64,731/. The defendants,

however, failed to make payment of the aforesaid amount.

Thus, the principal sum payable to the plaintiff came to

Rs.14,09,010/-. The plaintiff has claimed the aforesaid

amount from the defendants along with interest at the rate

of 18% per annum, amounting to Rs.6,13,618/-.

2. The principal amount has been paid to the plaintiff

on 18.06.2011, during pendency of the suit and the claim

of the plaintiff survives only with respect to payment of

interest and cost of the suit.

3. A legal notice was sent by the plaintiff to the

defendants on 14.07.2009. The notice is an admitted

document and has been exhibited as Ex.P-5. It was sent

vide A.D.cards Ex.P-1 to P-4. Vide this notice, the plaintiff

required the defendant to release the payment of

Rs.14,09,010/- along with interest thereon at the rate of

18% per annum from due date of payment till the date of

actual payment.

Section 3 of The Interest Act, 1978 to the extent it

is relevant provides that in any proceedings for the recovery

of any debt or damages or in any proceedings in which a

claim for interest in respect of any debt or damages already

paid is made, the Court may, if it thinks fit, allow interest to

the person entitled to the debt or damages or to the person

making such claim, as the case may be, at a rate not

exceeding the current rate of interest, if the proceedings do

not relate to a debt payable by virtue of a written

instrument at a certain time, then, from the date mentioned

in this regard in a written notice given by the person

entitled or the person making the claim to the person liable

that interest will be claimed, to the date of institution of the

proceedings.

Since the plaintiff had served requisite notice, they

are entitled to interest under Section 3 of Interest Act, 1978

from the date on which the amount of the Bill ought to have

been paid by defendant - MCD.

The plaintiffs have claimed interest only at the rate

of 18%. Considering the nature of transaction between the

parties, I deem it appropriate that the plaintiff is awarded

interest at the rate of 9% per annum which comes to Rs

3,06,809/-.

4. As regards the cost of the suit, I see no justification

why the plaintiff should not get the amount of Court fee

from the defendant. It is the defendant who drove the

plaintiff to the Court by not making payment in time. It

would be unjust to the plaintiff to deprive it of the amount

of Court fee which it had to pay only on account of failure of

the defendants to make payment within the time stipulated

in this regard. As regards counsel's fee, in the facts and

circumstances of the case, I deem it appropriate to direct

payment of half of the counsel's fee to the plaintiff.

5. For the reasons given in the preceding paragraphs,

a decree for recovery of Rs 3,06,809/- along with entire

Court fee and half of the counsel's fee is passed in favour of

the plaintiff and only against defendant No.1. Since

defendant No.2 is only an employee of defendant No.1, the

plaintiff is not entitled to recover any amount from him. The

suit against defendant No.2 is dismissed without any order

as to costs. The plaintiff shall also get interest at the rate of

9% per annum if the amount due under this decree is not

paid within eight weeks.

(V.K. JAIN) JUDGE

MAY 31, 2011 SN/bg