Kaushalya Contractor & ... vs Jaspal Kaur Public School
2011 Latest Caselaw 5163 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 20.10.2011

+ CS(OS) 1676/2007


KAUSHALYA CONTRACTOR & DEVELOPERS (P) LTD.
                                ..... Plaintiff
             Through: None.

                     versus

JASPAL KAUR PUBLIC SCHOOL              ..... Defendant
              Through: Mr Jasmeet Singh and
              Mr Saurabh Tiwari, Advs.

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 20,20,326/- and a

counter claim for recovery of Rs 6,42,500/- The defendant

awarded work of renovation of toilet block in the school to

the plaintiff, vide award letter dated 17th May, 2006 and the

work was to be completed by 25th June, 2006. It is alleged

in the plaint that the plaintiff mobilized the machines,

equipments AND labour and started work for renovation of

toilet block of defendant school, but, it was asked to carry

out extra work, to the tune of Rs 8,27,513.35/-, which was

not stipulated in the award letter and, therefore, it could not

meet the deadline fixed in the award letter. This is also the

case of the plaintiff that the awarded work as well as the

extra work was completed by it by the first week of July,

2006. According to the plaintiff, it carried out total work for

Rs 28,93,579.85/- which comprised the awarded work for

Rs 20,66,066.50 and extra work for Rs 8,27,513.35. This is

also the case of the plaintiff that though only a sum of Rs

64,931 was to be deducted towards income tax at source,

the defendant deducted a sum of Rs 1,15,743.49. The

plaintiff accordingly submitted a final bill of Rs

23,21,064.17 after giving adjustment for the advance

payment of Rs 3,91,840/- which it had received from the

defendant. The defendant made payment of Rs 4,88,780/-

to the plaintiff. It is also alleged that the architect appointed

by the defendant informed the plaintiff that a sum of Rs

1,50,000/- had been deducted for rectification of the work

carried out by another contractor. Since the balance

amount was not paid, the plaintiff has claimed the balance

principal sum of Rs 17,35,750.91 along with interest on

that amount, thereby making a total sum of Rs 20,20,326/-

2. The defendant filed written statement contesting

the suit and also filed the above-referred counter claim of

recovery of Rs 6,42,500/-.

The defendant denied the authority of Mr Jagdish

Sharma to instate the suit and sign and verify the pleadings

on behalf of the plaintiff. It was also alleged that time was

the essence of the contract and, therefore, the work was to

be completed at all costs by 25 th June, 2006, the reopening

date for the school being 03rd July, 2006. It is further

alleged that the plaintiff defaulted for adhering to the time

schedule and executed work of a sub-standard nature. It is

also alleged that the plaintiff did not complete even 40% of

the work and raised exaggerated bills. It is claimed that the

architect M/s Myriad Perceptions checked the quality of the

work done by the plaintiff and accordingly a sum of Rs 9

lakh was paid to the plaintiff. Since the work executed by

the plaintiff was sub-standard and defective, the defendant

had to get the same re-done through M/s Mbience Interior

Designer and Furnishers and pay a sum of Rs 12,43,379/-

for the aforesaid rectification and modification and to

complete the balance work which the plaintiff had not

executed. It is also alleged that on account of delay by the

plaintiff in executing the work, the defendant had to install

portable toilets in order to avoid inconvenience to the

children. The defendant claims to have incurred additional

expense of Rs 67,500/-for hiring mobile toilet. According to

the defendant, it is entitled to recover a sum of Rs

5,75,000/- from the plaintiff for the rectification of the sub-

standard and inferior work executed by the plaintiff as also

for building the work which the plaintiff company did not

execute and a sum of Rs 67,500/- paid for hire of mobile

toilets, thereby making a total sum of Rs 6,42,500/-.

3. The following issues were framed on the pleadings

of the parties:-

i. Whether the suit has been instituted and the plaint

signed and verified by a duly authorized person on

behalf of the plaintiff? OPP

ii. Whether the plaintiff is entitled to recover any balance

amount for works done for the defendant and if so how

much? OPP

iii. Whether the plaintiff failed to complete the works

awarded? OPD

iv. Whether the defendant had to get the works completed

and rectified from another party and if so to what effect?

OPD

v. Whether the counter claim has been instituted and

signed and verified by a duly authorized person on

behalf of the defendant? OPD

vi. Whether the defendant is entitled to recover any

amounts from the plaintiff for any works left incomplete

by the plaintiff and/or for rectification of the defective

work done by the plaintiff and/or for delay caused by the

plaintiff and if so what amount? OPD

vii. Whether the party entitled to found recovery of any

monies from the other, entitled to any interest and if so

at what rate and for what period? OPP

viii. Relief

4. No evidence has been let by the plaintiff. The issue

is, therefore, against the plaintiff and in favour of the

defendant.

5. The defendant has placed on record the copy of the

resolution passed in the General Body Meeting of Mata Jai

Kaur Charitable Trust on 3rd October, 2007 whereby

Mr.George Mathew, Principal of Jaspal Kaur Public School,

which is stated to be a school being run by Mata Jai Kaur

Charitable Trust, was authorized to

commence/institute/defend/file cases for and on behalf of

Jaspal Kaur Public School. Since there is no evidence in

rebuttal, I hold that the counter-claim has been signed and

verified and the suit instituted by a competent person on

behalf of Mata Jai Kaur Charitable Trust. The issue is

decided accordingly.

6. These issues are inter-connected and can be

conveniently decided together. The plaintiff has not

produced any evidence and in fact after 20 th January, 2011,

no one has been appearing for the plaintiff. Vide order

dated 20th January, 2011, the Court noted that cost of

Rs.1,000/- was imposed on the plaintiff on 15th December,

2008, cost of Rs.3,000/- was imposed on it on 10 th May,

2010 and cost of Rs.10,000/- was imposed on

22nd September, 2010. It was further noted that the Court

had, while passing the order dated 22nd September, 2010,

also directed that if the plaintiff failed to pay the costs which

were imposed on 15th December, 2008 and 10th May, 2010

as also the cost imposed on that date, the suit shall stand

dismissed for non-prosecution. Since neither the cost were

paid nor any witness was produced by the plaintiff and the

learned counsel appearing for the plaintiff stated on 22nd

January, 2011 that he was not getting any instructions

from the plaintiff, the evidence of the plaintiff was closed.

7. The defendant has filed affidavit of Mr. George

Mathew, Principal of Jaspal Kaur Public School by way of

evidence in the counter-claim. In his affidavit, Mr. George

Mathew has stated that the work carried out by the plaintiff

was not only sub-standard, defective, shabby, but also

below par and far from satisfactory. According to him, the

following defects were found in the work carried out by the

plaintiff:-

(a) The poor workmanship in the shaft area of toilet led to

heavy seepage in all the floors causing substantial damage

to other floors and the concrete.

(b) Due to delay in the contract time, the defendant had to

install portable toilet to avoid inconvenience to the children,

which cost heavily to the school.

(c) The connection pipes used were of substandard quality

as they were already corroding again causing seepage and

damage to the concrete.

(d) Tiles were not laid properly on the floor as no level was

maintained. Due to this, there was water logging on the

floor.

(e) The partitions between the W.C's were not fixed properly,

and were shaking. They had to be refixed again.

Mr. George Mathew also stated that the plaintiff

did not complete even 40% of the work awarded to it and

raised highly exaggerated bills which included bills for the

work which it had not done. He has further stated that

since the plaintiff did not complete the work in time, the

school had engaged the other contractor, namely, Mbience

Interior Designers and Furnishers Delhi, to do the balance

work in which an additional expense of Rs.12,43,379/- was

made towards the costs of rectification of the substandard

work done by the plaintiff. Ex.DW-1/2 & Ex.DW-1/3 are

the invoices raised by M/s. Mbience Interior Designers and

Furnishers in respect of the work executed by it.

Ex.DW-1/4 is the certificate dated 21st November, 2007

issued by Punjab and Sind Bank certifying for the payment

of Rs.12,43,379/- to M/s.Mbience Interior Designers and

Furnishers Delhi. Ex. DW-1/5 is the letter dated 17 th July,

2006 which the Architect of the defendant had returned to

the plaintiff pointing out the work not done by the plaintiff.

According to Mr. George Mathew, the defendant had to hire

mobile toilets for a period of five days after re-opening of the

school, i.e. from 3rd July, 2006 to 7th July, 2006 and Ex.DW-

1/6 is the invoice raised by Superloo in this regard. Ex.DW-

1/7 is the certificate from the bank verifying the payment

made to M/s. Superloo. Mr.Mathew has also stated that the

defendant has already made payment of Rs.8,80,620/- to

the plaintiff, which was verified by the Bank vide certificate

Ex.DW-1/8. I see no reason to disbelieve the unrebutted

testimony of Mr. George Mathew and, therefore, hold that

the work executed by the plaintiff company besides being

incomplete was also sub-standard and defective and,

therefore, the defendant had to incur expenditure of

Rs.12,43,379/- in removing the deficiencies in the work and

completing the work which was left unfinished by the

plaintiff. There is no evidence of any extra work having been

executed by the plaintiff for the defendant. The evidence

shows that even the awarded work was not completed by

the plaintiff. The testimony of Mr. George Mathew also

shows that the defendant has paid a sum of Rs.8,80,620/-

to the plaintiff. It has been admitted in the plaint that the

defendant had deducted a sum of Rs.1,15,743.49 from the

bill of the plaintiff towards income-tax to be deducted at

source. The aggregate of the amount of Rs.12,43379/-

which the defendant paid to M/s. Mbience Interior

Designers and Furnishers, Rs.8,80,620/- paid to the

plaintiff and Rs.1,15,743.49 deducted towards payment of

income-tax comes to Rs.22,39,742.49. The defendant had

to pay a sum of Rs.20,04,240/- to the plaintiff. The

defendant also paid a sum of Rs.67,500/- to M/s.Superloo

on account of the failure of the plaintiff Company to execute

the work within the time stipulated for this purpose. After

deducting the sum of Rs.20,04,240/- which it was required

to pay to the plaintiff, the defendant is entitled to recover

the balance amount of Rs.303002.49 from the plaintiff

Company. The issues are decided accordingly.

ORDER

In view of my findings, the suit is hereby dismissed

with cost.

Counter-Claim 53/2008

A decree for Rs.303002.49 with proportionate costs and

pendente lite and future interest @ 6% per annum is passed

in favour of Mata Jai Kaur Charitable Trust which runs

Jaspal Kaur Public School and against the plaintiff

company.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE OCTOBER 20, 2011 BG/'sn'/'vn'