Delhi High Court
M/S Vijai Infrastructure Limited vs M/S Progressive Constructions ... on 27 August, 2013
Author: Mukta Gupta
43# $
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 70/2010
% Decided on: 27th August, 2013
M/S VIJAI INFRASTRUCTURE LIMITED ..... Plaintiff
Through: Mr. Abhinav Vashist, Sr. Advocate
with Mr. Nishant Menon and Mr.
Prince Pawaiya, Advocates.
versus
M/S PROGRESSIVE CONSTRUCTIONS LIMITED ..... Defendant
Through: None.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J (ORAL)
1.
The Plaintiff has filed the present suit under Order XXXVII CPC for
recovery of Rs. 19,78,71,711.80 along with the interest @ 18% per annum
from the date of the institution of the suit till realization.
2. Summons to the Defendant were issued under Order XXXVII on 18 th
January, 2010. The Defendant entered appearance before this Court on 23rd
March, 2010 when the counsel for the applicant filed an application seeking
summons for judgment under Order XXXVII Rule 4 CPC. The summons
for judgment were received by the Defendant on 8 th July, 2010 and he filed
his application under Order XXXVII Rule 3 (5) CPC being I.A. No.
9493/2010 on 17th July, 2010. However, this application of the Defendant
was dismissed for non-prosecution on 12th August, 2013 as none was present
on behalf of the Defendant on the said date nor was the Defendant
represented on 12th February, 2013. Thus the Plaintiff prays for a judgment
under Order XXXVII CPC.
3. The case of the Plaintiff is that the Plaintiff is a company duly
incorporated under the Companies Act and the suit has been instituted by
Shri M.L. Sharma, its authorized representative in whose favour the Board
Resolution dated 5th January, 2009 authorizing him to file the suit on behalf
of the Company has been placed on record. The Defendant is also a
company duly incorporated under the Companies Act. The Defendant
Company formed a joint venture with one M/s Sunway Construction Berhad
under the name and style of M/s PCL-SUNCON ("JV") wherein the
Defendant held the majority financial stake. The Defendant submitted a bid
in the name of the joint venture to the National Highway Authority of India
(in short „NHAI‟) for the work of four laning of part of NH-2. The main
contract was awarded for a sum of Rs. 396,47,78,901/-. The Defendant
approached one M/s K.R. Anand as a sub contractor for execution of the part
of the project which in turn approached the Plaintiff. Thus the Defendant
appointed the Plaintiff as a sub-contractor vide its agreement dated 25th
February, 2002 which has been placed on record. The value of the part
project awarded to the Plaintiff was Rs. 90 crores. Pursuant to the agreement
and as per the terms and conditions of the main agreement between NHAI
and the joint venture the Plaintiff fulfilled the Defendant‟s obligation under
the main contract. The Plaintiff also paid to the Defendant amounts against
the performance security given by the Defendant to NHAI for the portion of
the project sub-contracted to the Plaintiff. The Defendant also deducted
retention money from the running bills of the Plaintiffs. Thus the total
amount due and payable by the Defendant to the Plaintiff is as under:-
PARTICULARS AMOUNT
Towards performance security Rs. 1,5741,509/- (Rupees One Crore
initially deposited by M/s K R Fifty Seven Lakh Forty One
Anand, which was to be refunded to Thousand Five Hundred Nine Only)
the Plaintiff by the Defendant in
terms of the letter issued by M/s K R
Anand dated 5th January, 2010 (@
Pg. No. 2 of Plaintiff‟s documents)
Towards balance amount of Rs. 64,99,286/- (Rupees Sixty Four
performance security deposited by Lakh Ninety Nine Thousand Two
the Plaintiff. (reflected in Hundred And Eighty Six Only)
Defendant‟s ledger @ Pg. No. 3 of
Plaintiff‟s documents)
Towards balances for the work done Rs. 59,77,922.14 (Rupees Fifty Nine
during the contract period. (reflected Lakh Seventy Seven Thousand Nine
in Plaintiff‟s ledger @ Pg. No. 9 of Hundred Twenty Two and Fourteen
Plaintiff‟s documents) Paise Only)
Towards retention money deducted Rs. 5,49,37,944/- (Rupees Five Crore
from the bills of the Plaintiff. Forty Nine Lakh Thirty Seven
(reflected in Defendant‟s ledger @ Thousand Nine Hundred Forty Four
Pg. No. 4 of Plaintiff‟s documents) Only)
Towards bank guarantee margin Rs. 60,00,000/- (Rupees Sixty Lakh
money for purchase of bitumen/HSD Only)
from Indian Oil Corporation Limited
(reflected in Defendant‟s ledger @
Pg. No. 5-6A of Plaintiff‟s
documents)
Towards additional work done Rs.1,49,74,540.66 (Rupees One
during maintenance period (As per Crore Forty Nine Lakh Seventy Four
original statement of work @ Pg. No. Thousand Five Hundred Forty and
8 of Plaintiff‟s documents) Paise Sixty Six only)
Towards excise duty reimbursement. Rs.3,50,00,000/- (Rupees Three
Crore Fifty Lakh only)
Amount withheld by the Defendant Rs.5,87,40,510/- (Rupees Five Crore
on the untenable ground that NHAI Eighty Seven Lakh Forty Thousand
had not paid the said amount to the Five Hundred Ten only)
Defendant
4. The Plaintiff has placed on record its ledgers and the Defendant‟s
ledger to support the claims made. Despite service of legal notice dated 18th
November, 2009 regarding payment of outstanding amount of
Rs.19,78,71,711.80 the Defendant has neither replied to the notice nor
disputed or denied the liability. The Defendant has admitted the liability in
its ledgers accounts, copies whereof have been placed on record. This Court
has territorial jurisdiction to entertain the suit as the written agreement dated
25th August, 2002 between the parties had been executed at Delhi and the
substantial part of the cause of action has arisen in Delhi. Consequently, a
decree is passed in favour of the Plaintiff against the Defendant for a sum of
Rs. 19,78,71,711.80 under Order XXXVII CPC. The Plaintiff is also
entitled to the interest @9% per annum from the date of filing of the suit till
the realization. Decree sheet be drawn accordingly.
5. The suit stands disposed of.
(MUKTA GUPTA)
JUDGE
AUGUST 27, 2013
'vn'
