M/S Unison Airconditioner & Anr vs M/S Creons Advertising Pvt. Ltd.
2018 Latest Caselaw 6651 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 905/2018

%                                                2nd November, 2018

M/S UNISON AIRCONDITIONER & ANR

                                                         ..... Appellants

                          Through:       Mr. C.S. Bhandari, Advocate
                                         (Mobile No. 8860346364).

                          versus

M/S CREONS ADVERTISING PVT. LTD.

                                                        ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 46047-48/2018 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

C.M. Appl. No. 46049/2018 (for delay)

2. For the reasons stated in the application the delay of 16

days in re-filing the appeal stands condoned, subject to just

exceptions.

C.M. stands disposed of.

RFA No. 905/2018 and C.M. Appl. No. 46046/2018 (for stay)

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

of Civil Procedure, 1908 (CPC) is filed by the defendants/counter-

claimants impugning the judgment of the Trial Court dated 31.05.2018

by which the trial court has decreed the suit for recovery of Rs.

6,53,054/- filed by the respondent/plaintiff for claiming back the

advance 50% price paid by the respondent/plaintiff to the

appellants/defendants and work not having been done by the

appellants/defendants, and by the same impugned judgment the

counter-claim filed by the appellants/defendants for a sum of

Rs.4,12,765/- for works allegedly done by the appellants/defendants

for the respondent/plaintiff has been dismissed.

4. The facts of the case are that respondent/plaintiff filed the

subject suit pleading that the appellants/defendants were engaged in

the business of air conditioner fittings and related services and

therefore the respondent/plaintiff issued a Purchase Order dated

21.10.2007 upon the appellants/defendants for installation of

equipment and providing services of air conditioning at the site at

Udyog Vihar in Gurgaon where the respondent/plaintiff was to carry

on work. The total value of the purchase order was Rs. 6,84,740/- and

the respondent/plaintiff additionally was to pay Value Added Tax

(VAT) amounting to Rs. 79,217.50/- and service tax of Rs. 6,303.60/-.

In terms of the purchase order, 50% amount of the contract was paid

as advance, and this 50% amount of Rs. 3,42,371/- including Tax

Deducted at Source (TDS) and Work Contract Tax (WCT) was paid

by the respondent/plaintiff to the appellants/defendants, but the

appellants/defendants did not start the work at site resulting in the

work having to be allotted by the respondent/plaintiff to M/s Blue

Star. The respondent/plaintiff claimed to have suffered losses during

breach of contract on the part of the appellants/defendants, and after

serving Legal Notice dated 16.03.2009, the subject suit for recovery

was filed by the respondent/plaintiff.

5. The appellants/defendants contested the suit by filing

written statement wherein a set off was also claimed. It was pleaded

by the appellants/defendants that in fact it was the respondent/plaintiff

who stopped the workers of the appellants/defendants from doing the

work after 15 days of commencement of the work on 22.10.2007. The

appellants/defendants pleaded to have incurred expenses of Rs.

85,000/- for doing the work under the subject purchase order. The suit

was prayed to be dismissed because it was stated that except a sum of

Rs. 9,709/- nothing was due from the appellants/defendants to the

respondent/plaintiff. The appellants/ defendants pleaded that in fact

they were entitled to counter claim for other works done by them for

the respondent/plaintiff from 08.12.2006 to 09.01.2008, and counter-

claim was prayed to be decreed for an amount of Rs. 4,12,765/- along

with interest.

6. After the pleadings were complete, the trial court framed

issues and parties led evidence, and these aspects are recorded in paras

10-13 of the impugned judgment and these paras read as under:-

10. From pleadings of the parties, following issues were framed for adjudication vide order dated 24.07.2013.

1. Whether the defendant failed to start the work and discharge his obligation in pursuance of purchase order dated 20.10.2007? OPP

2. Whether the plaintiff stopped the workers of the defendant from working on the site as alleged in the written statement ? OPD

3. Whether the plaintiff is entitled to recovery of sum of Rs. 6,53,054/- from the defendant? OPP

4. Whether the plaintiff is entitled to interest, is so, at what rate and for which period? OPP

5. Whether the defendant is entitled to claim set off to the tune of Rs. 4,12,765/- alongwith interest @ 15% per annum as claimed in the written statement? OPD

6. Relief.

11. In order to prove its case, plaintiff examined Mr. Arun Kumar Yadav, accountant of plaintiff company as PW-1 who exhibited his affidavit in evidence vide Ex. PW1/A wherein he reiterated averments made in plaint. During his deposition, he also relied upon and exhibited following documents: -

Ex. PW1/1: Certified copy of resolution passed by BOD of plaintiff company in favour of PW-1 Ex. PW1/2(colly): Copy of Quotation submitted by defendant Ex. PW1/3: Copy of purchase order dated 20.10.2007 Ex. PW1/4: Payment voucher dated 21.10.2007 Ex. PW1/5 : Payment Voucher dated 24.10.2007 Ex. PW1/6: Copy of Legal notice dated 16.03.2009 Ex. PW1/7: Original Postal receipts qua Ex. PW- 1/6 Ex. PW1/8: Returned Envelop alongwith AD card Ex. PW1/9: Returned Envelop alongwith AD card Ex. PW1/10: Extract of resolution passed by BOD of plaintiff company dated 01.10.2009 in favour of Mr. Devendra Kansal Ex. PW-1/D1 : Copy of letter dated 10.11.2007 written on behalf of Smile Interactive Technologies to plaintiff (exhibited in cross examination of PW-1)

12. Defendants on the other hand examined defendant no. 2 Mr. Sachin Katiyal as DW-1 who exhibited his affidavit in evidence vide Ex. DW1/A. He has deposed in consonance with stand taken by defendants. During his deposition, he also relied upon the following documents i.e.:-

Ex. DW-1/1: Statement of account /ledger account of plaintiff maintained by defendant Ex. DW-1/2: Copy of Invoice dated 07.11.2016 Ex. DW-1/3 : Copy of Invoice dated 08.12.2016 Ex. DW-1/4: Copy of Invoice dated 21.12.2016 Ex. DW-1/5: Copy of Invoice dated 21.12.2016 Ex. DW-1/6: Copy of Invoice dated 08.03.2007 Ex. DW-1/7: Copy of Invoice dated 08.03.2007 Ex. DW-1/8: Carbon copy of Invoice dated 22.04.2007 Ex. DW-1/9: Carbon copy of Invoice dated 29.04.2007

Ex. DW-1/10: Carbon copy of Invoice dated 30.04.2007 Ex. DW-1/11: Carbon copy of Invoice dated 30.04.2007 Ex. DW-1/12: Carbon copy of Invoice dated 30.04.2007 Ex. DW-1/13: Carbon copy of Invoice dated 30.04.2007 Ex. DW-1/14: Carbon copy of Invoice dated 30.04.2007 Ex. DW-1/15: Carbon copy of Invoice dated 18.06.2007 Ex. DW-1/16: Carbon copy of Invoice dated 18.06.2007 Ex. DW-1/17: Carbon copy of Invoice dated 20.06.2007 Ex. DW-1/18: Carbon copy of Invoice dated 26.07.2007 Ex. DW-1/19: Carbon copy of Invoice dated 27.07.2007 Ex. DW-1/20: Carbon copy of Invoice dated 27.07.2007 Ex. DW-1/21: Copy of Invoice dated 15.11.2007 Ex. DW-1/22: Copy of Invoice dated 15.11.2007 Ex. DW-1/23: Carbon copy of Invoice dated 09.01.2008

13. Defendants further examined Mr. Rohit as DW-2 who exhibited his affidavit in evidence vide Ex. DW2/A. He supported stand of defendants so far as Ex. DW-1/1 is concerned."

7(i). The trial court has held that there is no dispute that the

Purchase Order/Ex.PW1/3 dated 20.10.2007 was placed upon the

appellant/defendant and execution of work under which was to be

completed within 15 days i.e. by 05.11.2007. It was also not disputed

and otherwise proved in terms of the Payment Vouchers Ex.PW1/4

and Ex.PW1/5 that the appellants/defendants had received 50% of the

price as advance. The trial court has rejected the stand of the

appellants/defendants that the respondent/plaintiff stopped the

appellants/defendants from executing the work after 15 days and it has

been held by the trial court that the appellants/defendants have filed

nothing to show commencement of work at Udyog Vihar site at

Gurgaon and nor has any measurement record been submitted by the

appellants/defendant of having done a particular amount of work. The

trial court has also noted the admission made by DW-1 in his cross-

examination that the appellants/defendants do not have any register or

record to show that the work was started from 22.10.2007 and the

same carried on till 05.11.2007. The trial court has also rejected the

case of the appellants/defendants that he submitted the bill of Rs.

85,000/- for work done because the said bill is not shown to have been

received by the respondent/plaintiff by fixing its seal on the same and

that the DW-1 could not state as to who made this bill as Ex.DW1/23

which was allegedly sent to the respondent/plaintiff and nor the person

to whom the bill was submitted with the respondent/plaintiff was

stated. The trial court has also given a finding that DW-1 in his cross-

examination recorded on 09.07.2016 has admitted that he never

brought any complaint or protest letter written to the

respondent/plaintiff that the respondent/plaintiff has illegally stopped

the work being done by the appellants/defendants. The trial court has

also held that the case of the appellants/defendants is clearly incorrect

because if the work was stopped prior to expiry of 15 days, which

expired on 05.11.2007, then how come the case of the

appellants/defendants is that they had worked for 15 days as was

claimed by the appellants/defendants.

7(ii). This Court completely agrees with the aforesaid findings

and conclusions of the trial court and therefore it is held that the

respondent/plaintiff has proved that despite receiving the advance 50%

of the amount of the purchase order, the appellants/defendants failed

to do work resulting in the respondent/plaintiff having to award the

work to M/s Blue Star.

8(i). So far as the case of the appellants/defendants pertaining

to its counter-claim, the same was subject matter of Issue no.5, and

this issue has been decided against the appellants/defendants by the

trial court by holding that appellants/defendants have failed to prove

that the bills Ex.DW1/2 to DW1/23 were ever served upon the

respondent/plaintiff because it is not stated that the bills Ex.DW1/2 to

DW1/23 bear whose signature on receipt, with the fact that the bills do

not even bear the seal of the respondent/plaintiff company showing

receipt. To the aforesaid conclusions of the trial court, this court

would also like to add that if the appellants/defendants had done work

from December, 2006 as per bills Ex.DW1/2 to DW1/23, then there

was no reason as to why the appellants/defendants were not paid for

the work done way back from December, 2006. Also, from December

2006 till the filing of the suit on 23.10.2009, no correspondence was

entered into by the appellants/defendants claiming payments of the

bills Ex.DW1/2 to DW1/23. This Court would further like to note that

the appellants/defendants have not stated as to what are the purchase

orders with respect to which the bills Ex.DW1/2 to DW1/23 were

issued by the appellants/defendants to the respondent/plaintiff.

8(ii). This Court, therefore, does not find any illegality in the

reasoning and conclusions of the trial court that the

appellants/defendants failed to prove their counter claim which was

subject matter of Issue no. 5.

9. In view of the aforesaid discussion, there is no merit in

the appeal, and the same is hereby dismissed.

NOVEMBER 02, 2018                             VALMIKI J. MEHTA, J
AK