Delhi High Court
M/S.Survi Projects Private ... vs M/S. Om Builders on 27 August, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: 27thAugust , 2014
+ CS (OS) No.2269/2009
M/S. SURVI PROJECTS PRIVATE LIMITED ..... Plaintiff
Through Mr.Kawaljit Singh, Adv.
versus
M/S. OM BUILDERS ..... Defendant
Through Defendant is ex-parte
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. This is a suit for recovery filed by the plaintiff against the
defendant. The defendant is ex-parte.
2. Brief facts of the case are that the plaintiff, engaged in the
business of civil construction, was allotted work of Civil Construction
at Village Prithla, Tehsil & Distt. Palwal by M/s Mahindra & Mahindra
vide letter dated 21st February, 2008 in terms of the agreement dated
29th February, 2008.
3. In terms of the said agreement, the plaintiff engaged one M/s
Lord Krishna, as a sub-contractor to work at sight vide letter dated
24th March, 2008. However, the said sub-contractor could not
execute the work within the stipulated time and as agreed by the
plaintiff, due to which the sub-contractor absolved itself from the
conditions of sub-contract vide letter dated 23rd July, 2008 and further
assigned the work to the defendant herein.
4. Vide letter dated 23rd July, 2008 (Ex. P-6), the defendant
conveyed their consent and agreed to do the assigned work for the
plaintiff on the basis of same agreed terms and conditions. The
defendant started the work in terms of letter dated 23rd July, 2008 as
per agreed terms and the plaintiff started making payments to the
defendant from time to time.
5. It has been stated by the plaintiff that the defendant always
insisted and requested for instant payments for the work undertaken
with assurance that it is going on speedily as they are heading
towards the execution of work in time as agreed and the defendant
used to raise bills later on, on completion of particular work/job.
6. The defendant did not complete its work within the agreed time
and abandoned the site time and again despite many requests of the
plaintiff. There was regular pressure from M/s. Mahindra & M/s.
Mahindra for completion of the construction in time which the plaintiff
could not do on account of defendant's fault and abandoned the site
without completing the work for which a penalty of Rs.20,00,000/-
was imposed by M/s Mahindra & Mahindra on the plaintiff.
7. It is averred that the defendant is liable to bear the proportion of
the penalty from Rs.20,00,000/- imposed on the plaintiff as per
agreed terms and conditions dated 23rd July, 2008. Accordingly,
Rs.9,84,425/- becomes due from the defendant. Also, when the
plaintiff reconciled its accounts, it was revealed that the plaintiff has
paid an excess payment of Rs.14,40,281/- to the defendant for which
the work had not been done.
8. The plaintiff called upon the defendant to make the due
payment of Rs.24,24,706/- but the defendant instead of paying the
plaintiff rather started threatening the plaintiff of dire consequences if
the amount is demanded from the defendant.
9. To avoid the liability of the due payment, the defendant has
been filing false complaints against the plaintiff before the police and
the defendant has been threatening that it will get the plaintiff
implicated in criminal cases if the due payment is demanded from the
defendant.
10. Plaintiff got a Legal Notice dated 25th June, 2009, served upon
the defendant despite of receiving which the defendant has not paid
the said amount. Aggrieved thereof the plaintiff filed the present suit
for recovery of Rs.24,24,706/- against the defendant.
11. The suit was listed before Court on 2nd December 2009 when
summons were issued to the defendant in the suit.
12. Though the defendant was served with summons as per record
on 13th March, 2011, no written statement was filed. Despite
repeated opportunities, admission/denial of plaintiff documents was
not carried out. Ultimately, admission/denial of documents was
closed and vide order dated 1st May, 2012 it was held that documents
of the plaintiff are deemed to have been admitted by the defendant.
13. The defendant was proceeded ex-parte vide order dated 16th
July, 2012. In the evidence, the plaintiff proved the facts stated in the
plaint by evidence by way of affidavit of Mr. Neeraj Bhagat, Director
of the plaintiff as Ex. PW-1/X, and also exhibited certain documents
exhibited as Ex. P-1 to Ex. P-10 in support of its case. The same are
as follows:
Original copy of Memorandum and Articles of association of
M/s Survi Projects Private Ltd., Ex P-1.
Extract of Board Resolution dated 26th October, 2009, Ex P-
2.
Photocopy of Agreement dated 29th February, 2008, Ex P-3.
Original letter dated 24th March, 2008 by M/s Lord Krishna,
Ex P-4.
Original Sub-contract, Ex P-5.
Original letter dated 23rd July, 2008 by M/s Om builders, Ex
P-6.
Original letter dated 23rd July, 2008 by M/s Lord Krishna, Ex
P-7.
Account statement, Ex P-8.
Debit Note dated 6th October, 2008, Ex P-9.
Office copy of legal notice dated 25th June, 2009, Ex P-10.
14. The defendant did not appear to contest the matter. No written
statement was filed by the defendant. PW-1 was also not cross-
examined by the defendant.
15. The ex parte evidence of the plaintiff was closed on 7th May,
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 Rs. 24,24,706/- in terms of the
prayer clause of the plaint. The same is accordingly passed in favour
of the plaintiff and against the defendant. The plaintiff is also entitled
for costs. The decree be drawn accordingly. The suit is disposed of.
(MANMOHAN SINGH)
JUDGE
AUGUST 27, 2014
