Newgen Software Technologies ... vs The Controller, Asmts, Gmch
2014 Latest Caselaw 3694 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Order delivered on: August 13, 2014

+                       CS(OS) No.1763/2007

       NEWGEN SOFTWARE TECHNOLOGIES LTD. ..... Plaintiff
                  Through Mr.S.C.Sharma, Adv.

                        versus

       THE CONTROLLER, ASMTS, GMCH                  ..... Respondent
                   Through None

       CORAM:
       HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. The plaintiff has filed the present suit for recovery of Rs.3,11,06,700/- (Three Crore Eleven Lac Six Thousand Seven Hundred Only) against the defendant alongwith pendentelite interest and future interest from the date of institution to the date of realization.

2. Brief facts of the case are that the defendant had invited from the plaintiff submission of proposal for supply, integration and commissioning of Assam State Medical Transcription Services (ASMTS) with complete technical details along with Earnest Money Deposit (EMD) so as to finalize tenders etc. plaintiff in response thereto submitted its offer alongwith the EMD of Rs.230.42 lacs on 18th September, 2004. The same was acknowledged by the defendant vide letter dated 20th September, 2004 and 14th October,

2004. The defendant vide letter dated 1st December, 2004 confirmed the receipt of the proposal and conveyed acceptance thereof to the plaintiff. Particulars asked for by the defendant were supplied by the plaintiff vide letter dated 6th December, 2004.

3. Vide letter dated 20th January, 2005, the plaintiff was asked by the defendant to start the work by March, 2005. The plaintiff on 4th March, 2005 raised an invoice of Rs. 354.45 lacs being 10% of the Order value as mobilization advance, which was also approved by the defendant on 9th March, 2005. The defendant accorded sanction of Rs. 2.50 crores as ad hoc advance in favour of the plaintiff vide five cheques.

4. When the plaintiff presented these cheques, it was informed to the plaintiff that there were not enough funds in the account of the defendant. The plaintiff informed the Controller of the defendant i.e. signatory of the cheques who assured plaintiff soon the necessary funds would be arranged and the plaintiff should carry on the work.

5. The defendant allegedly asked the plaintiff to sign a special agreement No. 85/05 dated 16th September, 2005 which the plaintiff did but there is no communication from the defendant to the plaintiff in respect of the same.

6. It has been stated that subsequently, the defendant started avoiding the plaintiff despite plaintiff having fulfilled all the conditions of the defendant and defendant kept on giving false assurances.

7. Plaintiff vide letter dated 26th April, 2006 and 16th June, 2006 asked the defendant to refund the EMD amount as plaintiff could no longer block its money. Plaintiff thereafter sent a legal notice dated 4th October, 2006 to the defendant but did not get response from the defendant.

8. The plaintiff company is incorporated under Company's Act and has registered office in Delhi. Suit has been filed by one Mr.A.K. Saran who is General Manger, Commercial duly authorized vide resolution dated 30th July, 2007.

9. The defendant i.e. the Controller, Assam State Medical Transcription Services (ASMTS), Guwahati Medical College and Hospital (GMCH) vide letter No.F5/C-11/ASMTS/2004/727 dated 14th September, 2004 requested and invited from the plaintiff submission of proposal for supply, integration and commissioning of Assam State Medical Transcription Services (ASMTS) with complete technical details alongwith Earnest Money Deposit (EMD) so as to finalize tenders etc.

10. Plaintiff in response to abovesaid invitation of submission of proposal of defendant submitted its offer for supply, installation and commissioning of medical transcription services etc. alongwith Earnest Money Deposit (EMD) of Rs.230.42 lac.

11. Defendant vide letter dated 20th September, 2004 acknowledged the offer of plaintiff and the EMD amount as stated hereinabove.

12. The defendant again vide letter dated 1st December, 2004 confirmed the receipt of proposal and conveyed acceptance of proposal to the plaintiff. Further, particulars asked for by the defendant were supplied to the satisfaction of the defendant by the plaintiff vide letter dated 6th December, 2004.

13. The defendant conveyed of starting the works to the plaintiff by March, 2005 vide its letter dated 20th January, 2005.

14. The plaintiff raised invoice No.008 dated 4th March, 2005 for Rs.354.45 lac being 10% of the order value as mobilization advance and same was approved by the defendant on 9th March, 2005 and the defendant accorded sanction of Rs.2.50 crore as ad-hoc advancae in favour of the plaintiff vide five cheques.

15. When the plaintiff presented the abovesaid cheques to its bankers the manager of the defendant's bank UCO Bank informed the bankers (ICICI) of the plaintiff that there were not enough funds in the account of the defendant.

16. The plaintiff company vide letter dated 26th April, 2006 and 16th June, 2006 requested the defendant to refund the EMD amount of Rs.230.42 lac as plaintiff coiuld no longer afford to block its sum of money. Thereafter, the plaintiff sent legal notice dated 4th October, 2006 to the defendant but no response from the defendant. The defendant neither awarded the work to the plaintiff nor refunded the EMD amount. The defendant is withholding the monies of the plaintiff for more than 10 years.

17. It is mentioned by the plaintiff that besides the present suit the plaintiff also filed a criminal complaint under Section 403, 406, 409 and 420 IPC being No.2538/2007 against the defendant Mr.Subhendu Sorcar/Controller, ASMTS, GMCH pending before MM, South District, Saket, New Delhi. In the said complaint the non- bailable warrants were issued against Mr.Subhendu Sorcar. The defendant filed a Criminal Misc.(Main) No.2938/2011; Subhendu Sorcar vs. State of Delhi & Anr. Seeking quashing of the abovesaid Criminal Complaint No.2538/2007. The proceedings are still pending before this Court in the category of Regulars. In the letter dated 10th January, 2013 filed by Mr.Subhendu Sorcar in Crl. Misc. (Main) No.2938/2011 pending before this Court wherein in the last paragraph of the abovesaid letter which has been exhibited as Exb. PW-1/23, the defendant has admitted that the EMD amount of Rs.2.5 crore deposited by the plaintiff is at present lying deposited with State Bank of India, Guwahati (Assam).

18. It is the case of the plaintiff that defendant neither awarded the work to the plaintiff nor refunded the EMD amount. The defendant is withholding the money of the plaintiff for more than 10 years and causing wrongful loss to the plaintiff and wrongful gain to himself.

19. The suit was listed before the Joint Registrar on 26th September, 2007 when summons were issued to the defendant in the suit.

20. Despite service of summons, and appearance of counsel on behalf of defendant, no written statement was filed and consequently

the defendant was proceeded ex-parte vide order dated 20th November, 2009.

21. The plaintiff filed its affidavit of evidence as dated 22nd February, 2010 and proved the facts stated in the plaint by evidence by way of affidavit of Mr. A K Saran, General Manger (Commercial) of the plaintiff as Ext. PW-1/A and also exhibited other documents in support of its case. The details of the same are as follows:

 Original Acknowledgment no. 2247 dated 20th September, 2004 from defendant, Ex. PW1/4.

 Original Acknowledgment dated 14th October, 2004 from defendant, Ex. PW1/5.

 Original Memo dated 1st December, 2004 from S. Sarkar, Controller, defendant, Ex. PW1/6.

 Letter dated 7th February, 2005 of plaintiff to defendant, Ex.

PW1/9.

 Copy of Letter dated 15th March, 2005 of plaintiff, Ex.

PW1/12.

 Letter dated 17th March, 2005 of plaintiff, Ex. PW1/13.  Original letter dated 2nd February, 2006 from defendant to plaintiff, Ex. PW1/19.

22. The ex parte evidence of the plaintiff was closed on 26th April 2010. However, for the reasons stated therein, vide order dated 30th April, 2010, fresh summons were issued to the defendant.

23. Although on 25th February, 2011, one counsel filed memo of appearance on behalf of the defendant, no written statement was

filed, despite repeated opportunities. Consequently, the defendant was proceeded ex-parte vide order dated 10th September, 2012. It was stated by the plaintiff that no further evidence was required to be led and accordingly, the ex parte evidence was closed vide order dated 27th November, 2012. However on 6th February, 2013 the counsel for the plaintiff stated that he be permitted to file an application for placing on record certain additional evidence that came in the hands of plaintiff and were relevant for adjudication of the suit. An additional affidavit dated 13th September, 2013 was filed of Mr. A K Saran, General Manger (Commercial) of the plaintiff as Ext. PW-1/B and additional evidence was accordingly closed vide order dated 20th September, 2013.

24. 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 for a sum of Rs.3,11,06,700/- in terms of the prayer clause of the plaint. The plaintiff is also entitled to pendentelite interest and future interest @ 9% p.a. from the date of filing the suit till the date of payment. The plaintiff is also entitled for the costs.

25. The decree be drawn accordingly. The suit is disposed of.

(MANMOHAN SINGH) JUDGE AUGUST 13, 2014