Trimax It And Infrastructure ... vs Kalakriti Interiors
2018 Latest Caselaw 2182 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 304/2018

%                                          Reserved on: 4th April, 2018
                                         Pronounced on: 9th April, 2018

TRIMAX IT AND INFRASTRUCTURE SERVICES LTD.
                                       ..... Appellant
                  Through: Mr. Dilip Kumar Mishra,
                           Advocate
                  versus
KALAKRITI INTERIORS                                     ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J

CM No. 12701/2018 (Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

CM No. 12699/2018 (delay of 118 days in filing the appeal)

For the reasons stated in the application, delay in filing is condoned, subject to just exceptions.

CM stands disposed of.

RFA No. 304/2018 & CM No. 12700/2018 (stay)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

impugning the judgment of the trial court dated 18.8.2017 by which

the trial court has decreed the suit of the respondent/plaintiff for a sum

of Rs.34,08,656/- along with interest at 8% per annum. Suit is decreed

on account of claim of respondent/plaintiff towards unpaid bills of

civil works of Data Centres for Life Insurance Corporation of India

Limited and for which civil works contracts were awarded to

appellant/defendant by LIC.

2. The facts of the case are that the subject suit was filed by

pleading that respondent/plaintiff is engaged in the work of interior

design, civil works and related services. The appellant/defendant

company was dealing in turnkey projects for setting up data centres in

various IT and other projects. Appellant/defendant contacted the

respondent/plaintiff in the year 2010 for execution of civil works of

Data Centres of LIC at places initially at Delhi, Punjab, Haryana,

Himachal Pradesh and Jammu and Kashmir. Thereafter, the

respondent/plaintiff was also engaged by the appellant/defendant for

execution of projects all over India. Respondent/plaintiff pleaded to

have completed the jobs to the entire satisfaction of the

appellant/defendant, with the works being completed by the year

2011. Respondent/plaintiff raised bills from time to time which were

acknowledged and paid in part by appellant/defendant. The

appellant/defendant however did not pay the balance amount of

Rs.25,56,656/- along with interest and therefore after serving a legal

notice dated 28.7.2014 the subject suit was filed for recovery of

Rs.35,08,656/-, i.e the principal amount of Rs.25,56,656/- along with

interest at 12% per annum of Rs.8,52,000/-.

3. Appellant/defendant contested the suit by filing its

written statement. It was not disputed in the written statement that

respondent/plaintiff was awarded contracts for doing the interior work

for LIC projects and appellant/defendant assigned to the

respondent/plaintiff interior work jobs at Delhi, Punjab, Haryana,

Jammu and Kashmir etc. Various purchase orders were placed by the

appellant/defendant upon the respondent/plaintiff. It was pleaded that

appellant/defendant kept on releasing payment at regular intervals

without verifying details of the invoices submitted and the

appellant/defendant found that in fact respondent/plaintiff has received

an excess amount of Rs.10,37,333/- with respect to LIC projects of the

appellant/defendant. In the written statement it was also pleaded that

the main dispute arose when respondent/plaintiff started mingling up

the accounts of various projects for which monies were taken but

when respondent/plaintiff was asked to give separate accounts for

various projects the respondent/plaintiff kept on delaying the same on

one pretext or the other and resultantly there was an over-payment of

Rs.10,37,333/- by the appellant/defendant to the respondent/plaintiff.

Appellant/defendant pleaded that there were oral talks on 29.4.2014

between the parties at the office of the appellant/defendant at Mumbai

for settlement and after re-conciliation respondent/plaintiff admitted

that there was excess payment of Rs.10,37,333/- in the LIC projects

and in fact after adjusting amounts for the LIC project and a

subsequent project of HPSCBL a sum of Rs.3,90,603/- was payable by

the respondent/plaintiff to the appellant/defendant. It was pleaded by

the appellant/defendant that the various bills given by the

respondent/plaintiff towards the extra works done totaling to eight in

numbers have never been accepted by appellant/defendant, and

therefore no amount is due to the respondent/plaintiff.

4. After pleadings were complete, trial court framed the

following issues:-

"1. Whether the plaintiff is entitled for the recovery of the amount as prayed for? OPP

2. Whether the plaintiff is entitled for interest as prayed for? OPP

3. Relief."

5. Whereas the respondent/plaintiff examined himself as

PW-1 for proving his case, appellant/defendant led the evidence of

two witnesses namely Sh. Amit Tehrani as DW-1 and Sh. Ankush

Rana as DW-2.

6. Trial court by the impugned judgment has decreed the

suit by holding that the purchase orders were proved by the

respondent/plaintiff as Ex.PW1/1 (colly). The bills raised upon the

appellant/defendant were proved as Ex.PW1/2 (colly). The emails

sent by the respondent/plaintiff to the appellant/defendant with the

replies were proved as Ex.PW1/3 (colly) along with the certificate

under Section 65-B of the Indian Evidence Act, 1872 as Ex.PW1/4.

Legal notice dated 28.7.2014 along with postal receipts were proved

as Ex.PW1/6 and Ex.PW1/7 with reply to the legal notice proved as

Ex.PW1/8. Summary of accounts was Ex.PW1/2 (colly). Trial court

has held that the bills were allowed to be raised only after approval of

measurements by the LIC, and which organization had awarded work

to the appellant/defendant. Trial court has further held that disputes

between the parties had only arisen on account of the stand of the

appellant/defendant that when the various accounts of the different

projects were tallied, it was only then for the first time that the

appellant/defendant contended over payment of Rs.10,37,333/- but

DW-1 Sh. Amit Tehrani in his cross-examination never disputed

issuing of purchase orders to the respondent/plaintiff and that the work

of LIC and projects awarded to the respondent/plaintiff came to an end

in October 2011 and only whereafter the final bill was raised by the

respondent/plaintiff with the fact that respondent/plaintiff was allowed

to raise bills only after approval of measurements by the LIC. This

was so specifically admitted by DW-2 Sh. Ankush Rana in his cross-

examination (Page 3 para 2) dated 30.3.2017. Trial court has also

found as a matter of fact that the defence of the appellant/defendant

that appellant/defendant did not ask the respondent/plaintiff to do

extra work is without basis because appellant/defendant had never

objected to the work being done on the ground that said extra work

was not to be done by the respondent/plaintiff. DW-2 also admitted

that no objections were raised in writing ever with respect to the bills

raised by the respondent/plaintiff for the extra items bills. Trial court

has further held that the claim of the appellant/defendant of having

made excess payment of Rs.10,37,333/- is without basis because this

has not been proved by the appellant/defendant and the documents

have not been proved and exhibited but only marked as Mark B and

Mark D. The relevant observations of the trial court for decreeing the

suit read as under:-

"16. Having heard the arguments and perused the evidence brought on record, firstly I find that it is an admitted case that the plaintiff was allowed to raise bills only after approval of measurements by the LIC India Ltd. i.e. parent organization and that the defendant entered into an agreement with the LIC India Ltd. to build data center on 28.06.2010. It has also been admitted that after having discussion with the plaintiff, the defendant assigned the job for doing interior work on various places including Delhi, Punjab, Haryana, H.P and J&K etc. and also that various purchase orders were issued to the plaintiff by the defendant for these projects. It is also admitted fact that the defendant, because of good business relationship with the plaintiff, released the payment at regular intervals to the plaintiff without verifying the details of the invoices submitted by the plaintiff.

17. As per the defendant's version, the dispute between the parties arose only when the statement of account of various projects were tallied and the defendant found that the plaintiff in the garb of trust and confidence had received the excess amount of Rs.10,37,333/- in the LIC project from the plaintiff. On perusal of cross-examination of DW-1 Sh. Amit Tehrani, I find that he has categorically admitted that the defendant company issued purchase orders while awarding the contract to the plaintiff on 28.06.2010 in writing. He further admitted that the LIC project awarded to the plaintiff came to an end till October 2011 and only thereafter, the final bill was raised by the plaintiff. Further, DW-1 had no knowledge whether the defendant company had received the final bill running into 27 bills Ex.PW-1/3 or not.

18. Besides above, perusal of the summary of accounts Ex.PW-1/2 (colly) shows that the plaintiff has also claimed bills for the extra work done by the plaintiff, whereas DW-1 during his cross-examination stated that he was not aware whether the extra work executed by the plaintiff was approved by the company bearer or not.

19. Similarly, DW-2 Sh. Ankush Rana during his cross-examination also could not say that whether the defendant company had raised any objections towards the extra item bills raised by the plaintiff. further, DW-2 admitted that he used to visit the sites for checking of the quality and quantity of work, but he did not remember that whether he had written any mail to the plaintiff regarding the quality and quantity of work. He also did not remember what issued were raised by him at the time of conclusion or running of the LIC project against the plaintiff. DW-2 also could not say that the defendant company had raised any objection towards the extra item bills raised by the plaintiff. DW-2 further admitted that LIC used to give the acceptance/approval regarding the measurement of the work done over the said project and only then the plaintiff was allowed to raise the bills qua the projects. He was not aware as to whether the defendant company had raised any objection towards the bills raised by the plaintiff prior to filling of the present suit;

20. It is pertinent to mention that DW-2 also stated during his cross- examination that he had not restrained the plaintiff from doing any extra work on the said projects in writing. Apparently, the defendant has not been able to show that there was any deviation from the work as assigned and approved by the defendant company or that the plaintiff has received any extra payment by not maintaining the separate accounts for various projects. None of the defendant witnesses stated so in their testimonies that the plaintiff, by not creating separate accounts of different projects, received extra payments from the defendant. It is an admitted case that LIC project came to an end in the year 2011 and the HPSCBL project was awarded to the plaintiff in the year 2012. The final payments qua the LIC projects are of 2011 only and the plaintiff has not raised the bills of the subsequent years for LIC projects as it admittedly came to an end in October, 2011. DW-1 Sh. Amit Tehrani admitted that HPSCBL project was awarded to the defendant company on 21.11.2011.

21. Besides above, it was alleged in the written statement that the defendant kept requesting for a separate account for various projects, however, I find that none of the witnesses entered into the witness box depose anywhere on this issue specifically. Further, the defendant took a plea that they had paid excess amount of Rs.10,37,333/-to the plaintiff and as such, DWs relied upon the documents namely Mark B to Mark D. However, I find that neither the originals of these documents have been brought on record nor any authorized person from the accounts department was called in the witness box for his evidence on this aspect. In these circumstances, the defence taken by the defendant is found vague and thus, is rejected." (underlining added)

7. I do not find any illegality whatsoever in the aforesaid

findings and conclusions of the trial court and in fact this Court would

like to add the fact that if allegedly appellant/defendant had over paid

the respondent/plaintiff an amount of Rs.10,37,333/- then there was no

reason why no letter was sent or legal notice issued nor suit filed for

recovery of this amount or allegedly the balance amount of

Rs.3,90,603/- on allegedly taking a joint accounts of both the LIC

projects and HPSCBL projects. Another important aspect which is

worth noting is that it is not the case of the appellant/defendant that

with respect to any work or any extra work which the

respondent/plaintiff did in the LIC projects, the appellant/defendant

was not paid for by the LIC for such works, and once that is so,

appellant/defendant cannot retain with it payments for works which

was done by the respondent/plaintiff and paid for by LIC to the

appellant/defendant. Also, I find it strange that why would

respondent/plaintiff allegedly do any extra work when such work was

admittedly beyond the scope of the contract, and therefore this extra

work only would have been because appellant/defendant and /or LIC

had asked for the same. In my opinion, therefore, the impugned

judgment suffers from no illegality for being interfered in this appeal.

8. Learned counsel for the appellant/defendant argued that

suit was time barred and was liable to be dismissed but when queried

it is admitted that no such defence of limitation was taken in the

written statement by the appellant/defendant, no such issue framed and

no such argument urged by the appellant/defendant before the trial

court. For this reason therefore this argument is liable to be and is

accordingly rejected. In any case it is also noted that the bills in this

case raised by the respondent/plaintiff upon the appellant/defendant

are from 18.10.2011 to 10.12.2011 whereas the subject suit was filed

on 20.8.2014 i.e before the expiry of three years of the first bill raised

on 18.10.2011 and therefore it cannot be argued that the suit was

barred by time. Though counsel for the appellant/defendant argued

that suit was based on the balance due at the foot of the running

account, but admittedly the suit plaint is not a suit plaint claiming

balance due at the foot of the account covered under Article 1 of the

Limitation Act and the suit filed by the respondent/plaintiff is a suit

for recovery of amount of various bills as detailed in para 5 of the

plaint and as reproduced in para 14 of the impugned judgment.

Therefore the argument that the suit could not have been decreed

because respondent/plaintiff had not filed its statements of account

and proved the same as required by law, is a misconceived argument.

9. In view of the aforesaid discussion, I do not find any

merit in the appeal. Dismissed.

APRIL 09, 2018                           VALMIKI J. MEHTA, J
ib/ak