Shri Arun Bansal vs Dr.Bhimrao Ambedkar University
2014 Latest Caselaw 6232 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 20th NOVEMBER, 2014
                              DECIDED ON : 27th NOVEMBER, 2014

+                         CS (OS) 892/2008

      SHRI ARUN BANSAL                                 ..... Plaintiff
                          Through :     Ms.Manisha Agrawal Narain,
                                        Advocate.


                          VERSUS

      DR.BHIMRAO AMBEDKAR UNIVERSITY ..... Defendant
                          Through :     Ms.Amita Gupta, Advocate.


          CORAM:
          HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Present suit for recovery of ` 56,67,048/- has been preferred

by Arun Bansal carrying on business under the name and style of 'M/s.

Confidential Enterprises'. Case of the plaintiff as set up in the plaint is as

under :

2. The plaintiff is running his business under the name and style

of M/s. Confidential Enterprises as sole proprietor. The defendant -

Dr.Bhimrao Ambedkar University (Formerly Agra University) used to

conduct entrance examination test every year. Papers for entrance

examination CPMT 2005 leaked out and the examination had to be

cancelled. Thereafter, another examination in the year 2005 was

conducted and it was allocated to the defendant. Sh.A.S.Kukla, Vice

Chancellor of the defendant University was nominated as chairman of

CPMT, 2005. Sh.A.S.Kukla contacted the plaintiff to print and provide

examination papers for CPMT, 2005 as an emergency job for the

rescheduled examination. On 04.06.2005, he met the Vice Chancellor at

his residence No. 240, Farmers Apartment, Sector-13, Rohini, Delhi. In

the said meeting, an oral agreement to print papers along with rates for

such printing was concluded between the parties. It is averred that the

Vice Chancellor delivered the original manuscripts of the question papers;

centre-wise packing details of seventeen different destinations in Uttar

Pradesh and a sum of ` 10 lacs in cash to the plaintiff. The Vice

Chancellor obtained a written receipt of the said amount from the plaintiff.

3. Further case of the plaintiff is that he performed his part of

the contract and delivered all the printed papers to the carrier Safexpress

Pvt. Ltd. having their office at Safex Cargo Complex, NH-8, Mahipalpur

Extension, New Delhi against acknowledgment. On 16.06.2005 and

17.06.2005, the said material was checked in the presence of Sh.Hari

Mohan, Coordinator, for the examination, Nodal Officers and Police

Officers of the Uttar Pradesh who later escorted the vehicles to their

destinations. Safexpress Pvt. Ltd. successfully delivered the papers at the

designated destinations and the examination was duly conducted.

4. Further case of the plaintiff is that after completing his job,

Bill No. 347(MP) dated 17.03.2006 for a sum of ` 38,08,500/- was raised

and delivered to the defendant. However, the defendant failed to make the

payment despite various reminders and legal notice. It is averred that the

defendant is liable to pay interest @ 18% per annum compounded

quarterly for the delayed payment which amounts to ` 18,58,548/-.

5. The suit is contested by the defendant. In the written

statement, the defendant controverted the assertions of the plaintiff and

pleaded that this Court has no territorial jurisdiction to entertain and

decide the suit as no cause of action arose in Delhi. The defendant further

contended that no such contract was executed with the plaintiff, at any

time, and no payment was due to be made to the plaintiff.

6. In the replication, the plaintiff reiterated his stand taken in the

plaint and controverted the defence of the defendant.

7. On the basis of pleadings of the parties and the documents on

record, following issues were framed by an order dated 31.07.2009 :

           (1)       Whether this Court has no territorial
          jurisdiction to try and entertain this suit? OPD
          (2)       Whether there is any contract between the
          parties, as alleged in the suit? OPP
          (3)       Whether the plaintiff is entitled for the relief

claimed? If so, for what amount is the plaintiff entitled to? OPP (4) Whether the defendants is liable to pay interest; if so, at what rate, for what period and on what amount? OPP (5) Relief.

8. To prove the case, the plaintiff examined himself as PW-1

besides producing Hari Mohan as PW-2. The defendant did not examine

any witness.

9. I have heard the learned counsel for the parties and have

examined the record. Findings on the issues are as under :

Issue No.1

10. The burden to prove this issue was on the defendant. As

observed above, the defendant did not examine any witness to show how

this Court had no territorial jurisdiction to decide the suit. The plaintiff

has stated on oath that an oral agreement to print the question papers for

the entrance exam was entered into with him in Delhi at the residence of

the Vice Chancellor. Payment of ` 10 lacs in advance was also made by

the Vice Chancellor to him at Delhi. The question papers printed in Delhi

were delivered to his authorised representative Hari Mohan as instructed

by Vice Chancellor. These assertions have remained unchallenged and

unrebutted. There is no denial that Sh.A.S.Kukla, Vice Chancellor was not

authorised to conduct any such CPMT exam of 2005 or that he was not

residing at Delhi. Receipt Ex.P9 for a sum of ` 10 lacs paid by

Sh.A.S.Kukla, Vice Chancellor to the plaintiff has been admitted.

Apparently, part of cause of action arose in Delhi and it attracts the

territorial jurisdiction of this Court to entertain and decide the case. The

issue is decided in favour of the plaintiff and against the defendant.

11. Both these issues are taken together as they are

interconnected.

The burden to prove these issues was upon the plaintiff. The

plaintiff examined himself as PW-1 and proved the contents of the plaint

by way of affidavit Ex.PW-1/A. He also relied upon the documents

exhibited as Ex.PW-1/1, Ex.PW-1/2, Ex.PW-3/A to Ex.PW-3/J and

documents Ex.PW-1/4 to Ex.PW-1/8. He also proved the documents

earlier marked as Ex.P1 to Ex.P9. These were admitted by the defendant

at the time of admission / denial of the documents. It is the categorical

version of the plaintiff that on 04.06.2005 he was contacted by the Vice

Chancellor and was called at his residence No. 240, Farmers Apartment,

Sector-13, Rohini, Delhi. There, in an oral contract, he asked him to print

question papers of the entrance examination, CPMT, 2005 which was

rescheduled due to cancellation of previous exam. Since confidentiality

was to be maintained at all level, no contract in writing was executed.

Acting upon the oral agreement, payment of ` 10 lacs was made by

Sh.A.S.Kukla, Vice Chancellor and receipt Ex.P9 was executed. There is

specific mention in Ex.P9 that payment of ` 10 lacs in cash was advanced

to the plaintiff towards the printing of confidential work related to CPMT

2005 examination. The genuineness of this receipt has not been

controverted and denied by the defendant. Rather the document Ex.P9 was

admitted by the learned counsel for the defendant during admission /

denial. There is no substance in the plea of the defendant that no such

receipt was executed and Sh.A.S.Kukla had not made any cash payment

of ` 10 lacs. There was no occasion for the plaintiff to fabricate the

receipt showing payment of ` 10 lacs by Sh.A.S.Kukla, Vice Chancellor.

On the contrary, it shows his bonafide whereby he admitted payment of `

10 lacs towards the order for printing of question papers.

12. The plaintiff has further deposed that these question papers,

after duly printed, were handed over to PW-2 (Hari Mohan), Nodal

Officers and Police Officers present at Ghaziabad. PW-2 (Hari Mohan)

has fully corroborated the version given by the plaintiff and has deposed

that in 2005, he was the Coordinator for CPMT examination. The Vice

Chancellor had directed him to proceed to Ghaziabad for taking delivery

and handing over the question papers to the Nodal Officers appointed by

him. He stayed in a hotel in Ghaziabad and there met the plaintiff. After

getting instructions from the Vice Chancellor, he came to know that these

question papers were printed by the plaintiff. The Nodal Officers had

given acknowledgments (Ex.PW-1/3A to Ex.PW-1/3J) and also (Ex.P2 to

Ex.P8) in token of receipt of the papers. He further deposed that the

papers printed by the plaintiff were used in the examination and there was

no complaint at all. In the cross-examination, he identified the receipt

Ex.P9 and stated that an advance of ` 10 lacs was given to the plaintiff.

He elaborated that an advance of ` 10 lacs was made to him by the

University as a Coordinator. Then the Vice Chancellor asked him to

submit ` 10 lacs in cash because he had to give it to the printer. It was

highly confidential and only the Vice Chancellor knew as to who was the

printer. Vice Chancellor made the payment to the printer and handed over

the receipt Ex.P9 to him. Later on, when the plaintiff sent the reminder, he

gave the said receipt along with reminder and other papers to the Vice

Chancellor.

13. The plaintiff has further proved on record the quotation

Ex.PW-1/1 whereby the rates and other details find mention. Ex.PW-1/2

is the letter written by the plaintiff to Manager, Safexpress Pvt. Ltd.

whereby the material contained in the boxes was dispatched. It bears the

seal / stamp of Safexpress Pvt. Ltd. showing receipt of the printed

material. Ex.P1, an admitted document, bears signatures of Sh.A.S.Kukla,

Vice Chancellor on the letterhead of the defendant University. It confirms

that the bearer of this letter was carrying highly confidential material for

Uttar Pradesh government. The trucks were duly sealed and the wagons

should not be opened without his prior permission. Ex.PW-1/3A to

Ex.PW-1/3J are the documents which contain signatures of Nodal Officers

whereby different boxes containing printed materials with details for

morning / evening session were received by them. Bill Ex.PW-1/4 was

raised and an amount of ` 38,08,500/- was claimed which the defendant

failed to pay.

14. PW-2, an independent witness from the defendant University

further deposed that he had received the reminder and copy of the bill. He

had signed the copy of that bill and acknowledgment of the copy of the

receipt contained his signatures at point 'A'. He received another

reminder of the plaintiff in 2006 on which, the Vice Chancellor made a

noting to make payment of the remaining amount to the plaintiff and it

was marked to him by the Vice Chancellor. He made his noting at point

'A' on the document Ex.PW-2/1. Perusal of the document Ex.PW-2/1

clearly reveals that the payment of ` 38,08,500/- was due from the

defendant and the Vice Chancellor, who has unfortunately expired, had

directed to pay the balance.

15. Despite lengthy cross-examination, version narrated by PW-1

and PW-2 could not be shattered. There is no basis for the defendant to

urge that no such agreement had taken place with the plaintiff in the

absence of any written contract. Since printing of question papers was a

matter of secrecy / confidentiality, it appears that no such instructions, in

writing, were given to the plaintiff. The anxiety of the Vice Chancellor

was to conceal the source from where the question papers were to be

printed. The defendant did not deny that no such exam (CPMT 2005) was

conducted at the relevant time. Nothing has been elaborated / explained by

the defendant as to how the question papers meant for CPMT 2005 were

printed from any other source and how much payment for the same was

made from the accounts of the defendant University. The defendant has

suppressed all the relevant documents despite specific directions to

preserve the record. Adverse inference is to be drawn against the

defendant for not examining any witness in evidence to controvert the

specific assertion of the plaintiff supported by PW-2 (Professor Hari

Mohan). It was imperative for the defendant to prove on record as to how

much payment was given by him to any other particular individual for

printing the question papers for CPMT 2005. No such information has

been made available and no such record has been produced. Apparently,

the payment for the question papers were to be made to the plaintiff. It is

not the case of the defendant that any payment for the said exam was

made to any specific individual.

16. The plaintiff has proved that pursuant to the oral agreement

executed with the defendant, he was entitled to get ` 48,08,500/- for the

work done by him. He fairly admitted payment of ` 10 lacs by receipt

Ex.P9. Apparently, the defendant have withheld the payment `

38,08,500/- without any sufficient cause. The plaintiff is entitled to

receive the same. The issues are decided in favour of the plaintiff and

against the defendant.

Issue No.4

17. The burden to prove this issue was upon the plaintiff.

However, nothing has come on record to infer if there was any agreement

between the parties to pay interest on the delayed payment. The plaintiff

in his affidavit Ex.PW-1/A did not reveal if at the time of meeting with

the Vice Chancellor, at his residence, there was any time schedule for

making the payment and in case of delayed payment, interest was to be

charged. No such amount as 'interest' was claimed by the plaintiff even

when he raised bills (Ex.PW-1/4 & Ex.PW-1/5) on 17.03.2006 after about

one year. The plaintiff has claimed the interest as there is mention of it at

the bottom of Ex.PW-1/4. This unilateral term and condition mentioned in

the printed proforma does not show if the defendant had agreed to pay

interest for the unpaid amount. Ex.PW-1/4 and Ex.PW-1/5 do not bear

signatures of any of the representative of the defendant. Accordingly, the

plaintiff cannot be permitted to claim any interest for the delayed

payment. This issue is decided in favour of the defendant and against the

plaintiff.

Issue No.5 - Relief

18. In view of the findings on the above issues, suit of the

plaintiff is decreed in the sum of ` 38,08,500/- with proportionate costs.

The plaintiff shall, however, be entitled for interest @ 8%, from the date

of filing of the suit, till the date of payment of the decretal amount.

19. Decree-sheet be prepared accordingly.

(S.P.GARG) JUDGE NOVEMBER 27, 2014 / tr