Delhi High Court
Shri Sai Constructions & Anr. vs Pnc. Infratech Ltd. & Anr. on 1 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 280/2018
% 1st November, 2018
SHRI SAI CONSTRUCTIONS & ANR.
..... Appellants
Through: Mr. D.P.S. Dagar and Mr. R.P.
Nafria, Advocates
(9810123591)
versus
PNC. INFRATECH LTD. & ANR.
..... Respondents
Through: Mr. A.S. Kulshrestha and Mr.
Lalit Kumar, Advocates for R-1
and 2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit
impugning the Judgment of the trial court dated 18.12.2017 by which
the trial court has dismissed the suit for recovery of Rs. 8,15,200/-
alongwith interest filed by the appellants/plaintiffs for the work done
by appellants/plaintiffs for the respondents/defendants, despite the fact
that the appellants/plaintiffs proved their case by stepping into the
witness box, and the respondents/defendants led no evidence.
2. The facts of the case are that the appellant no.1/plaintiff
no.1 is the sole proprietorship concern of the appellant no.2/plaintiff
no. 2. It was pleaded that the appellants/plaintiffs from November
2012 to February 2013, did construction work for the respondent no.
1/defendant no.1/company at Tanda Sohawal, UP, which included
works of excavation, concreting, rod winding (MT) template setting
etc. As requested by the respondents/defendants, bills were submitted
to the Head Office of the respondent no. 1/defendant no.1 at New
Delhi. Bill dated 22.02.2013 was submitted by the appellants/plaintiffs
to respondent no. 1/defendant no.1 for a sum of Rs. 6,90,671.90/-, and
since this bill was not paid even after 17 months of waiting, a Legal
Notice dated 07.08.2014 was sent to the respondents/defendants, and
thereafter the subject suit was filed.
3. The respondents/defendants were served in the suit and
appeared, but they failed to file their written statement in the
prescribed period, and hence their defence was struck off by the trial
court vide order dated 15.01.2015. This order has become final. The
appellants/plaintiffs led evidence of two witnesses being the appellant
no.2/plaintiff no.2 who was the proprietor of appellant no.1/plaintiff
no. 1 and also one Sh. Vijay Kumar Singh.
4. The appellants/plaintiffs proved on record the material
slips Ex.P-1 to Ex.P-3 showing that the respondents/defendants had
supplied the materials for execution of the work done by the
appellants/plaintiffs under the contract. The appellant no.2/plaintiff
no.2 as PW-1 deposed that the Original Bill dated 22.02.2013 was
retained by the respondents/defendants and he was given a photocopy
of the same. In the cross-examination, appellant no.2/plaintiff no.2
admitted that some payments were received by cheques from the
respondents/defendants but those payments were not for the works
that were the subject matter of the suit, but were payments towards
other works which were done by the appellants/plaintiffs for the
respondents/defendants.
5. In my opinion, once the appellants/plaintiffs have proved
their case by leading evidence, mere cross-examination of witnesses of
appellants/plaintiffs would not mean that the appellants/plaintiffs have
to fail. Though learned counsel for the respondents/defendants sought
to rely upon certain documents, however, these documents cannot be
looked into by this Court at the appellate stage once such documents
are not proved and exhibited in the trial court, and these documents of
the respondents/defendants are not proved and exhibited as neither
documents were put in the cross-examination of the appellant
no.2/plaintiff no.2 and nor the respondents/defendants have led
evidence to prove these documents.
6. Of course, I may clarify that the decree which will be
passed in the present case will only be against the respondent no.
1/defendant no.1 company, and respondent no. 2/defendant no.2 being
only a Managing Director of the respondent no.1/defendant no.1
company, would not be personally liable for the debts of the company.
7. I may also note that the appellant no.1/plaintiff no.1 filed
and proved on record the service of the Legal Notice dated
07.08.2014, Ex.PW1/4, postal receipts and tracking report Ex.PW1/5
(colly) to Ex.PW1/7 respectively, and therefore, appellants/plaintiffs
will also be entitled to interest.
8. In view of the above discussion, this appeal is allowed.
The impugned judgment of the trial court dated 18.12.2017 is set
aside. The suit of the appellants/plaintiffs is decreed for a sum of Rs.
8,15,200/- along-with pendente lite and future interest at 12% per
annum simple. The appellants/plaintiffs will also be entitled to costs
of the suit as also of the appeal. Decree sheet be prepared. The trial
court record be sent back.
NOVEMBER 01, 2018/ib VALMIKI J. MEHTA, J
