Delhi High Court
Devi Ram Hathwalia vs M/S Saptparani Cghs Ltd. on 3 February, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 03.02.2017
+ CS(OS) 672/2013
DEVI RAM HATHWALIA ..... Plaintiff
Through: Mr.R.S.Tomar, Advocate
versus
M/S SAPTPARANI CGHS LTD. ... Defendant
Through: Defendant is ex-parte.
CORAM:
HON'BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT (Oral)
1. The case falls within the category of commercial suit and the same be
re-numbered accordingly.
2. The case of the plaintiff is that he is carrying on the business of
construction under the name and style of M/s Hathwalia Builders. The
defendant (M/S SAPTPARANI CGHS LTD.) awarded a contract of
construction of 87 dwelling units on plot No.4, Sector 19B, Dwarka, New
Delhi-110075. It is further contended by the plaintiff that he completed the
work assigned to him and submitted various bills for the payment. Final bill
was submitted on 05.04.2011 for a sum of `21,24,58,731/-. The Architect,
however assessed the payable amount at `20,98,29,996/- out of the total bill.
CS(OS) No.672/2013 Page 1
The defendant had already paid a substantial amount and only a sum of
`99,66,127/- along with security deposit of Rs. 1 lakh is due. The architect
in Completion certificate certified on 20.04.2011, that all the 87 dwelling
units of defendant had been completed satisfactorily as per the terms of the
tender. It is submitted that despite the several requests, money was not paid
to the plaintiff. The plaintiff was given possession of three flat bearing nos.
B-02, B-22 and A-53 as security against the due amount.
3. On these facts, it is prayed that a decree of `1,33,34,371/- along with
pendente lite and future interest @ 18 % per annum be passed.
4. Defendants were duly served of the suit. None on behalf of the
defendants attended the court. The present defendant was duly served but
did not appear before the court and was proceeded ex-parte on 14.09.2015.
No written statement was filed. The plaintiff has examined himself and has
filed his affidavit in evidence which is proved as Ex.PW1/X. The plaintiff
has also proved on record the copy of the tender letter as Ex.PW1/1. Copy of
the acceptance of the contract is proved as Ex.PW1/2 and the copy of the
agreement is proved as Ex.PW1/3 and the final bill dated 05.04.2011 is
Ex.PW1/4. The certified final bill of the Architect is Ex.PW1/6 and the
completion certificate issued by the Architect is proved as Ex.Pw1/7. The
CS(OS) No.672/2013 Page 2
notice sent to the defendant demanding the due amount is exhibited as
Ex.PW1/8. Ex.PW1/9 is the reply of the defendant and the copy of the
ledger account of defendant is Ex.PW1/10. Copy of the legal notice is
Ex.PW1/11.
5. I have heard the arguments of learned counsel for the plaintiff.
6. It is argued on behalf of the plaintiff that there was no arbitration
clause in the agreement dated 25.02.2005 and in the reply dated 30.03.2012.
The defendant had acknowledged their dues and handed over the possession
of three flats of defaulting members namely Mr.Jagdish Tyagi, Mr.Vinay
Kumar and Mr.Nikhil Aggarwal till the clearance of the dues vide
Resolution passed in the General House Meeting of the defendant and the
copy of the Minutes dated 25.03.2012. The copy of the Minutes dated
25.03.2012 was sent by the defendant to plaintiff attached with its reply
Ex.PW1/9 which the defendant had written to the plaintiff in response to his
notice Ex.PW1/8.
7. I have given thoughtful consideration to the arguments and the
evidences on record.
8. The plaintiff has duly proved by proving relevant evidences on record
all the facts contended in the plaint. The agreement dated 25.02.2005
CS(OS) No.672/2013 Page 3
clearly shows that there was a contract between the plaintiff and the
defendant for the construction of 87 dwelling units and M/s Enar Consultant
was appointed as an architect. Other documents on record clearly show that
the architect had given a certificate of completion of work and had also
determined the total outstanding amount. Out of that total determined
amount, the defendant has admittedly paid to him a substantial amount and
balance amount of `99,66,127/- is still due. The Construction Agreement
Ex.PW1/3 also shows that the plaintiff had deposited a sum of Rs.1 lakh
towards earnest money for due performance of the agreement. Since the
defendant vide their document Ex.PW1/9 have admitted the payable dues
and also as a security gave possession of three flats to the plaintiff which he
was to hold till the payment of the dues, I am satisfied that the plaintiff has
proved his entitlement to a sum of Rs. `99,66,127/-. Plaintiff has also prayed
for pendente lite and future interest @ 18 % per annum. The plaintiff has
failed to show that under the terms of the contract he was entitled to receive
the interest @ 18%. In terms of Section 34 of the Code of Civil Procedure,
the dispute being a commercial dispute the plaintiff is entitled to pendente
lite and future interest @ 9% per annum. The present suit is decreed for a
sum of `1,00,66,127/- (one crore sixty six thousand one hundred twenty
CS(OS) No.672/2013 Page 4
seven only) along with pendente lite and future simple interest at the rate of
9% per annum, till its realization. Decree sheet be prepared accordingly. No
orders as to cost.
9. Plaintiff is also directed to release the security of three dwelling units
which were handed over to him as part of the security on realisation of the
decretal amount.
DEEPA SHARMA
(JUDGE)
FEBRUARY 03, 2017
rb
CS(OS) No.672/2013 Page 5
