M/S Project Masters vs M/S Ballall Engineerings Pvt Ltd ...
2015 Latest Caselaw 3589 Del

$~A-13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                             Date of Decision: 05.05.2015

+      CS(OS) 357/2013

       M/S PROJECT MASTERS                               ..... Plaintiff
                     Through            Ms.Ashu Arora, Adv.

                          Versus

       M/S BALLALL ENGINEERINGS PVT LTD ANR..... Defendants
                    Through  None.
       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)

1. Arguments have been heard in the suit. The Defendants entered appearance and have filed the written statement. Thereafter the defendants did not appear and are proceeded ex parte vide order dated 13.02.2015. 2 The present suit is filed for the recovery of Rs. 39, 96,449/- with interest.

3. It is the contention of the Plaintiff that it is a proprietorship concern and is engaged in the business of providing Project / construction management consultancy services and providing supervisory teams of professionals for managing building construction projects like hotels, hospitals, commercial towers etc. The Plaintiff contends that Defendant no.1 is a Pvt. Ltd. Company and Defendant no.2 is the authorized representative of Defendant no.1 and is engaged in the business of providing Project/construction management consultancy services.

4. It is the contention of the Plaintiff that Defendant no.2 approached the Plaintiff in the month of May, 2012 and informed them about their ongoing project of construction of the Maharashtra Sadan at K.G Marg, New Delhi (hereinafter referred to as the 'said project') and showed keen interest in hiring the supervisory team of the Plaintiff for supervising the said project i.e., the supervision of HVAC, plumbing and fire fighting, electrical, interior and furnishing work (said services). It is contended that on 10.05.2012 the Plaintiff upon the oral request of the Defendant no.2 deployed his supervisory team at the site i.e., Maharashtra Sadan K.G. Marg, New Delhi for supervising the said project. Further, the offer letter of the plaintiff was accepted by the defendants vide their letter dated 15.05.2012.

5. It is the contention of the plaintiff that as per the terms of the contract the Defendants agreed to pay a sum of Rs.15,00,000/- per month in advance towards the Construction Management Consultancy and the billing cycle was agreed to be from 10th of every month. It is further contended that the Defendants released a mobilization advance of Rs.15,00,000/- after deducting the TDS which was to be adjusted towards the end of the contract.

6. It is contended by the Plaintiff that on 09.06.2012 as per the terms of the contract the Plaintiff submitted the first RA bill for the period from 10 th May to 10th June, 2012 and requested the Defendants to release the payment at the earliest. Moreover, a sum of Rs.27,810/- was also pending towards the balance/enhanced service tax. It is the contention of the plaintiff that the Defendant no.2 vide email refused to pay the same stating that the sum is in contravention with the terms of the contract and that normally only 10% mobilization advance is given at initial stage but since the defendants had

paid 100% payment towards the mobilization amount therefore they are not liable to pay this month's bill and will make payments only after the completion of June, 2012.

7. The contention of the Plaintiff is that vide email dated 11.06.2012 and 29.06.2012 they reminded the defendants of the terms of the contract and requested them to release the payment. It is the contention of the plaintiff that a reply was sent by the defendant dated 30.06.2012 alleging that despite repeated requests the plaintiff did not supply the hard copies of the certificate of qualifications of the staff appointed which was a vague excuse for withholding the payments as those hard copies had been supplied to the Defendants two days after the acceptance of the contract.

8. The Plaintiff contends that on 01.07.2012 they supplied the soft copy as well as the hard copies of the all the certificate of qualifications of the staff appointed and also raised the 2nd RA Bill for the period from 10th June to 10th July 2012. It is the contention of the plaintiff that the defendant no.1 failed to release the payment. It is further contended that the plaintiff thereafter vide email dated 04.07.2012 informed the Defendants its difficulty of sustaining the entire staff for want of adequate funds and also stated that in event of non-release of outstanding amount the plaintiff will have to reduce the staff by 50% wef 05.07.2012. The Plaintiff also assured the defendants that in case the defendants release the outstanding payment and promise to pay future payments the plaintiff would reinstate the staff. However, it is contended that the reduced staff was reinstated by the plaintiff after two days itself on the request of the Defendant no.2.

9. It is the contention of the Plaintiff that the plaintiff was shocked to

receive an email dated 20.07.2012 from defendant no.2 wherein it was mentioned that the contract of the plaintiff was up to 15.07.2012 and the same was verbally terminated by the defendant and moreover the plaintiff was also verbally informed to remove its staff from the site. The plaintiff contends that no such verbal communication had taken place between the plaintiff and the defendant and also as per the terms & conditions of the contract one month's notice in writing was required for the termination of contract by any of the party.

10. It is the contention of the plaintiff that vide e-mail dated 20.07.2012 the plaintiff reminded the defendants about the termination clause of the contract. Thereafter, it is contended that the plaintiff informed the defendants that the plaintiff accepts the termination mail dated 20.07.2012 and according to the terms of the contract the period of services shall stand terminated on 20.08.2012.

10. It is the contention of the Plaintiff that vide email dated 21.07.2012 the Defendants imposed baseless allegations against the plaintiff in order to avoid the legitimate dues of the Plaintiff. The Plaintiff sent another reminder to the Defendants regarding the payment of outstanding bills vide email dated 21.07.2012. However, since no response was made by the Defendants a legal notice was sent on 28.07.2012.

11. The Plaintiff contends that the Defendants have appropriated the services of the Plaintiff, and have failed to pay the RA bills. It is contended by the plaintiff that as per accounts maintained by the Plaintiff in regular course of its business shows an outstanding balance of Rs.36,17,712/- excluding TDS, due and payable by the defendants to the plaintiff. It is

contended that the principal amount along with 24% interest p.a w.e.f 10.05.2012 till the date of the suit accrues up to Rs.39,96,449/- due and outstanding against the Defendants.

12. Defendants No.1 and 2 have filed the written statement. The defendants admit that they had engaged the services of the plaintiff as an additional Project Management Consultant under the defendants. The basic defence is that the plaintiff failed to execute the work as agreed and failed to provide desired manpower for the supervision work allotted to him. Hence, it is urged that accordingly looking at the dissatisfactory performance of the plaintiff during the first month only, it was decided unilaterally to discontinue the services of the plaintiff.

13. Mr. Rohit Raghav, proprietor of the Plaintiff concern has placed on record evidence by way of affidavit as PW1. He states that defendant no.2 approached him to deploy his services for supervising the ongoing project of the Defendants of construction of Maharashtra Sadan, K.G.Marg, New Delhi. He states that he deployed his supervisory team at the said project on 10.05.2012. He further states that his offer letter was also accepted by the defendants vide their letter dated 15.05.2012. Copy of Offer Letter/Contract is placed on record as Ex.PW-1/1 and the copy of Acceptance Letter by the defendants is placed on record as Ex.PW-1/2. It is stated that on 09.06.2012 he submitted the first RA Bill for the services rendered by him to the defendants for the period of 10th May to 10th June 2012. Copy of the RA Bill is placed on record as Ex.PW-1/4. It is stated that thereafter he reminded the defendants of their dues and the defendants avoided the payment on pretext of false allegations on the plaintiff vide e-mails exchanged between them.

He states that he raised the 2nd RA Bill for the period from 10th June to 10th July 2012 and requested for payment of the same. The copy of the 2nd RA Bill dated 10.07.2012 is placed on record as Ex.PW-1/9. He states that he received an email dated 20.07.2012 from defendant no.2 wherein they had mentioned that the plaintiff was verbally informed about the termination of the contract between them. However, he states that there was no verbal termination as according to the terms of the contract a written notice of one month is to be given by either of the parties who want to terminate the contract. He states that the plaintiff vide reply to the said mail accepted the termination of the contract and stated that according to the terms of the contract the period of services shall stand terminated on 20.08.2012. Copy of the e-mail dated 20.07.2012 is placed on record as PW-1/11. Thereafter, it is stated that on 28.07.2012 he sent a legal notice to the defendants for demanding his legitimate dues. Copy of the legal notice is placed on record as Ex.PW-1/14. It is stated in the evidence that the account maintained by him in regular course of his business shows an outstanding balance of Rs.36,17,712/-, which with interest @24% p.a. w.e.f 10.05.2012 is calculated as Rs.39,96,449/-. Copy of the ledger account of the plaintiff is placed on record as Ex.PW-1/13.

14. It may be pointed that defendant No.2 as per the plaint is the authorized representative of defendant No.1. A perusal of the plaint shows that no cause of action is stated which would make defendant No.2 personally liable for the dues of defendant No.1.

15. In view of the averments in the plaint and the unrebutted evidence filed by the plaintiff of PW-1, the plaintiff has established that defendant

No.1 is liable to pay a sum of Rs.39,96,449/- to the plaintiff. Defendant No.1 has failed to appear and lead evidence and prove its defence as set out in the written statement.

16. Accordingly, a decree of recovery of Rs. Rs.39,96,449/-is passed in favour of the plaintiff and against the Defendant No.1. The Plaintiff shall also be entitled to costs of the present suit.

17. The present suit is disposed off.

JAYANT NATH, J MAY 05, 2015 Nat