Delhi High Court
Reinforced Earth India P. Ltd. vs Scc Projects Pvt. Ltd. And Anr. on 13 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on:13th August 2014
+ CS(OS) No. 2188/2011
REINFORCED EARTH INDIA P. LTD ..... Plaintiff
Through Mr.Gurinder Pal Singh with
Mr. Mishal Vij, Advs
versus
SCC PROJECTS PVT LTD AND ANR. .....Defendants
Through None
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. The plaintiff has filed a suit for recovery for a sum of
Rs.22,18,602/- against the defendants.
2. Brief facts of the case are that a contract was entered into
between the plaintiff and National Highway Authority of India for the
construction of Guna Bypass on NH-3 in the State of Madhya
Pradesh. Pursuant thereto, on 22nd December, 2005, a contract was
entered into between the plaintiff and AIMIL Ltd. wherein the AIMIL
Ltd. was to provide reinforced soil technology. Subsequently, the RET
Division of AIMIL was taken over by the plaintiff and accordingly, a
Tripartite Agreement/Contract in the form of an Addendum dated 22nd
December, 2005 to the contract was entered into between AIMIL, the
defendant No.1 and the plaintiff (hereinafter referred to as the
"contract") whereby the existing contract agreement of 22nd
December, 2005 was transferred to the plaintiff with effect from 25th
July, 2006 without any change in the contractual obligations and
terms and conditions of the existing contract agreement and all the
contractual obligations were duly performed by the plaintiff. On 18th
September, 2008 a consolidated invoice bearing No.
REIPL/05169/08-09/F-01 amounting to Rs.1,40,94,245/- was raised
by the plaintiff upon defendant no.1 along with the summary of work
done vide another invoice no. REIPL/05169/08/0824 amounting to
Rs.21,12,444/- being the outstanding amount immediately due and
payable towards the plaintiff. Despite receipt of the invoices, no
payment of confirmation regarding payment was received from the
defendant No.1 and 2.
3. It is the case of the plaintiff that by vide letter dated 31 st March,
2009, a tax invoice amounting to Rs.15,29,312/- was raised by the
plaintiff upon the defendant no.1 towards the goods supplied under
the contract. However, the defendant No.1 has claimed tax benefit
before the Sales Tax Authority by portraying that the payment of the
said amount had been made by the defendant No.1 to the plaintiff,
but the fact remains that no payment was made by the defendants to
the plaintiff. The defendants vide email dated 19th August, 2009
addressed to the plaintiff acknowledged an outstanding liability of
Rs.1,55,882/- but it is silent on the payment of Rs.15,29,312/- on the
basis of which tax exemption from the Tax Department has been
claimed by the defendant No.1. As per the statement of accounts of
AIMIL as maintained by the defendant No.1, a sum amounting to
Rs.93,576/- stands due and payable towards the plaintiff, being the
balance outstanding due and payable by the defendants to AIMIL for
the work done under the contract.
4. It is stated that on 8th March, 2011 both defendant Nos. 1 and 2
were served with the legal notice claiming the amount due and
payable towards the plaintiff however, the said notice were unserved.
Despite repeated requests and reminders of the plaintiff, the
defendants have failed to make the said payment, an admitted
outstanding liability amounting to Rs.22,04,690/- stands immediately
due and payable towards the plaintiff.
5. The suit was listed before this court before the Joint Registrar
on 9th September, 2011 and the defendants have been duly served.
They also filed an application under Order 7 Rule 11 read with Order
14 Rules 1 and 2 CPC for rejection of the plaint. Reply to this
application was filed by the plaintiff. However, later on the defendant
stopped appearing in the matter and they were proceeded ex-parte
vide order dated 28th January, 2014.
6. In ex-parte evidence, the plaintiff filed affidavit dated 28th July,
2014 of Mr. Ashish Chandra, Manager (Administration) of the plaintiff
as Ex. PW1/A reiterating the contents of the plaint and also exhibited
certain documents exhibited as Ex.PW1/1 to Ex. PW 1/18 in support
of its case. PW-1 also stated in his affidavit that in the suit,
inadvertently the amount of recovery was written as Rs.22,04,690/-,
however the actual amount to be recovered from defendants is
Rs.20,87,021/-. The documents exhibited are as follows:
True Copy of board resolution dated 13th May, 2014, Ex.PW
True copy of the contract dated 22nd
December,2005,Ex.PW1/2
True copy of the Tripartite Agreement/ Addendum dated 22nd
December, 2005,Ex.PW1/3
True copy of the consolidated invoice bearing no.
REIPL/05169/08-09/F-01,Ex.PW1/4
True copy of the consolidated invoice bearing no.
REIPL/05169/08-09/0824,Ex.PW1/5
True copy of the letter dated 25th September 2008,Ex.PW1/6
True copy of letter dated 13th November 2008,Ex.PW1/7
True copy of letter dated 31st March 2009,Ex.PW1/8
True copy of the letter dated 5th October 2009,Ex.PW1/9
True copy of the email dated 19th August 2009,Ex.PW1/10
True copy of letter dated 11th March 2010,Ex.PW1/11
True copy of the letter dated 18th March 2010,Ex.PW1/12
True copy of the letter dated 29th March 2010,Ex.PW1/13
True copy of the statement of accounts evidencing the
amount due and payable by defendants to the plaintiff
towards the AIMIL accounts, Ex.PW1/14(colly).
Notice dated 8th March 2011 sent to the
defendants,Ex.PW1/15
Original notices received back by the plaintiff,
Ex.PW1/16(colly)
Original postal and courier receipts, Ex.PW1/17(colly)
Statement of Account reflecting the balance receivable,
Ex.PW1/18
However, vide order dated 30th July, 2014, PW1, Ashish
Chandra Joshi stated that he has relied upon the documents Ex.PW
1/1 to EX.PW 1/5, Ex.PW1/16 and Ex.PW 1/17, Mark A to Mark I and
further stated that the documents Mark as Ex.PW1/6 to Ex.PW1/14
stands unexhibited. It was further denied that document Mark as
Ex.PW1/15 and Ex.PW1/18 was filed by PW-1 as mentioned in his
affidavit.
7. The details of the calculation with regard to the outstanding
dues pending against defendants is as follows:
Particulars Amount
Work done Work done by AIMIL Rs.46,44,987/-
Work done by REIPL Rs.94,49,258/-
Extra supply of items by Rs. 8,81,658/-
REIPL
Total billed amount Rs.1,49,75,903/- A
Payment Payment received by AIMIL Rs. 41,22,302/-
received
Payment received by Rs. 87,66,580/-
REIPL(including TDS
certificate received by
REIPL)
Total receipts Rs.1,28,88,882/- B
Balance Receivable Rs.20,87,021/- A-B
8. As far as jurisdiction of Delhi courts is considered, it is stated
that the Delhi courts have jurisdiction to try and entertain this suit.
The Tripartite Agreement dated 22nd December, 2005 was executed
at Delhi. The consolidated invoice dated 18th September, 2008 was
raised from Delhi and clearly mentioned that it was subject to Delhi
jurisdiction. All the payments were to be made to the plaintiff in Delhi.
All communications were sent to the defendants from Delhi while the
communications issued by the defendants were received by the
plaintiff at Delhi.
9. The ex-parte evidence was closed vide order dated 30th July
2014. The evidence filed by the plaintiff has gone unrebutted as no
cross-examination of the plaintiff's witness was carried out, therefore,
the statements made by the plaintiff are accepted as correct
deposition. Under these facts and circumstances, the plaintiff is
entitled for a decree for recovery of a sum of Rs.20,87,021/- against
the defendants jointly. The plaintiff is also entitled to interest at the
rate of 9% w.e.f. 11th March, 2010 till realization of the total amount
due along with costs. The decree be drawn accordingly. The suit is
disposed of.
(MANMOHAN SINGH)
JUDGE
AUGUST 13, 2014
