M/S Af Colenco Ltd. vs M/S Tuff Energy Ltd.
2013 Latest Caselaw 1090 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of decision: 5th March, 2013

+                             CS(OS) No.1229/2011
       M/S AF COLENCO LTD.                                ..... Plaintiff
                    Through:            Mr. Siddharth Dias, Adv.
                                     versus
       M/S TUFF ENERGY LTD.                                 ..... Defendant
                    Through:             None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1.

The plaintiff has instituted the suit for recovery of Rs.46,11,772/-

from the defendant. Summons of the suit were issued to the defendant.

The defendant inspite of service failed to file written statement or appear

and was vide order dated 04.11.2011 proceeded against ex parte and the

plaintiff permitted to file ex parte evidence.

2. The plaintiff filed the affidavit by way of examination-in-chief of

its Managing Director Sh. Jothi Ekanthappa and which was tendered in

evidence before the Joint Registrar and the documents referred to therein

given the exhibit marks, and the plaintiff closed its ex parte evidence.

3. However when thereafter the matter came up before this Court, it

was discovered that the summons on the basis of service whereof the

defendant had been proceeded against ex parte, had been served on the

representative of M/s Tuff Drilling Pvt. Ltd. instead of the defendant and

thus the plaintiff was vide order dated 24.02.2012 directed to serve the

defendant afresh. The summons then sent to the defendant were returned

unserved with the report of the premises, address whereof was given by

the plaintiff, having been found locked. The plaintiff then applied for

substituted service stating that it had no other address of the defendant

available with it and which was allowed vide order dated 04.12.2012.

The defendant was accordingly served by publication in the newspaper

'The Statesman' for 14.02.2013. None appeared for the defendant on that

date. None appears for the defendant today also. The defendant is

accordingly, again proceeded against ex parte.

4. The plaintiff having already led its ex parte evidence, the counsel

for the plaintiff has been heard.

5. The plaintiff in its ex parte evidence has put exhibit marks on

photocopies of documents subject to the directions of this Court. The

defendant having chosen not to contest the suit and there being nothing to

doubt the documents on which exhibit marks have been put, the same is

permitted. The plaintiff in its ex parte evidence has proved that the

plaintiff is a company incorporated under the provision of the Companies

Act, 1956 and the suit has been filed by a duly authorized person on

behalf of the plaintiff; that the plaintiff is engaged in providing

consultancy and engineering services to Hydro and Thermal Power

projects; that the defendant had hired the said services of the plaintiff by

issuing a Letter of Award dated 02.07.2009 to the plaintiff; that though as

per the terms and conditions of the said Letter of Award, the defendant

was to pay 20% of the agreed consideration in advance and thereafter

30% on submission of pre-feasibility / feasibility study report, a further

30% on submission of draft project report and balance 20% on

submission of integrated project report and no monies whatsoever were

paid by the defendant to the plaintiff but the plaintiff still commenced the

work and submitted the pre-feasibility / feasibility study report and raised

invoices for the amount due from the defendant to the plaintiff but the

same were not paid; that the plaintiff thus stopped further work; that the

plaintiff however incurred expenditure in providing the services to the

defendant and for recovery of the agreed consideration till the stage the

plaintiff worked for the defendant, legal notice was issued and upon the

same remaining un-complied, this suit has been filed.

6. Though it appears a little strange that the plaintiff would

commence work for the defendant without the defendant paying even the

advance to be paid on acceptance by the plaintiff of the Letter of Award,

as aforesaid but the defendant having been proceeded against ex parte,

there is no reason to disbelieve the plaintiff.

7. The suit is accordingly decreed in favour of the plaintiff and

against the defendant for recovery of Rs.46,11,772/- with pendente lite

and future interest at 10% per annum. The plaintiff shall also be entitled

to costs as per Schedule.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J MARCH, 05, 2013 'gsr'