Delhi High Court
Marwar Hotels Pvt. Ltd vs Surya Enterprises, Through Its ... on 16 November, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 879/2018
% 16th November, 2018
MARWAR HOTELS PVT. LTD.
..... Appellant
Through: Mr. Sunil Choudhary,
Advocate (M. No.9899750209).
versus
SURYA ENTERPRISES, THROUGH ITS PROPRIETOR SH.
VINOD KUMAR
..... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No. 44912/2018(exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
RFA No. 879/2018 and C.M. No. 44911/2018(stay)
2. 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 30.01.2018 by which
the trial court has decreed the suit for recovery of moneys filed by the
respondent/plaintiff for the work of water-proofing treatment done for
the appellant/defendant at the hotel site of the appellant/defendant at
Jodhpur in Rajasthan. The suit has been decreed for a sum of Rs.
11,31,531.98/- alongwith interest @ 12% per annum.
3(i) The facts of the case are that the respondent/plaintiff had
filed the subject suit pleading that the appellant/defendant had placed
four purchase orders of the value of Rs. 20,26,194/- upon the
respondent/plaintiff, and details of which are as under:
Sl. No. Date Contract(s)/Purchase Subject Amount
Order No. Matter Rs.
1. 27.9.99 MHL/PROJ/J/0139 Work for 9,03,000
water tanks
and swimming
pool.
Additional
work as per
verbal order 21,594.00
2. 15.5.2000 MHL/PROJ/J/0218 For the work 6,05,600
of filling
expansion
joints with
Polysulphide
3. 26.7.2000 MHL/PROJ/J/0335 Water 2,66,000
proofing
treatment to
roof terrace
(WATTA)
4. 4.8.2000 MHL/PROJ/J/0326 For Silicone 2,30,000
sealant work
in windows
TOTAL = 20,26,194
(Rs. Twenty Lacs Twenty Six Thousand One Hundred Ninety Four only)
(ii) In addition to the aforesaid allotted work, the
respondent/plaintiff also pleaded that extra work was done as per the
oral directions of the appellant/defendant by the respondent/plaintiff.
Respondent/Plaintiff pleaded that the work was done to the
satisfaction of the appellant/defendant and the value of the said
completed work amounted to Rs. 20,30,128.58/-. Out of the total
amount, an amount of Rs. 12,73,737.12/- was pleaded to have been
received by the respondent/plaintiff from the appellant/defendant and
details of the payment are as under:-
DATE AMOUNT MODE
26-2-2000 Rs.2,00,000 Cheque
4-4-2000 Rs.5,27,956.89 Cheque/Draft
13-5-2000 Rs.91,070 Cheque/Draft
30-06-2000 Rs.2,45,725 Cheque/Draft
25-8-2000 Rs.53,018 Cheque
25-8-2000 Rs. 1,00,000/- Cheque
26-8-2000 Rs.20,013 Cash
TOTAL Rs.12,37,782(exclusive of bank charges,
income tax and sales tax)
(iii) Respondent/Plaintiff also pleaded that the
appellant/defendant also issued TDS Certificate to the
respondent/plaintiff. The balance outstanding came to Rs.
7,39,801.88/-, which was not paid by the appellant/defendant, and the
respondent/plaintiff had thus sent a Notice dated 27.01.2003 to the
appellant/defendant to make the payment due. This was replied to by
the appellant/defendant almost after a year in terms of the
appellant's/defendant's Letter dated 15.01.2004, denying any liability
by taking up the excuse that the work done by the respondent/plaintiff
was of defective quality. Therefore, the subject suit was filed for
recovery of balance amount alongwith interest. The principal amount
claimed in the suit was Rs. 7,39,801.88/- and alongwith the interest at
18% per annum from 14.07.2001 till the date of filing of the suit
amounting to Rs.3,99,493.08/-, the total suit amount thus claimed was
Rs. 11,39,295/-.
4. The appellant/defendant contested the suit and took up
various objections. The first objection was with respect to courts at
Delhi not having territorial jurisdiction and which is the first aspect
argued by the appellant/defendant before this Court. It was also the
case of the appellant/defendant that the work done by the
respondent/plaintiff was not of good quality, and consequently no
further payment had to be made, for the work done by the
respondent/plaintiff. Before this Court, learned counsel for the
appellant/defendant also argued that the purchase orders which have
been proved by the respondent/plaintiff are only photocopies and
before commencement of cross-examination, the exhibition of such
documents was objected to by the appellant/defendant, and therefore
the purchase orders should have been held 'not to have been proved'
by the trial court, and therefore the suit could not have been decreed.
5. After pleadings were complete, the trial court framed the
following issues:-
"1. Whether this court has no jurisdiction to entertain and decide the
present suit? OPD
2. Whether the suit is barred by limitation as alleged in para no.16 in
the WS? OPD
3. To what principal amount, if any, is the plaintiff entitled from the
defendant? OPP
4. Whether the plaintiff is entitled to any interest, if so, at what rate,
for which period and to what amount? OPP
5. Relief."
6. Trial court has held the issue of territorial jurisdiction
against the appellant/defendant by holding that that the payments were
made at Delhi, and therefore, the courts at Delhi have territorial
jurisdiction. Trial court has also held that the contract has taken place
at Delhi, and therefore, this is one another reason that the courts at
Delhi have territorial jurisdiction.
7(i). Learned counsel for the appellant/defendant with respect
to the issue of territorial jurisdiction argued that courts at Delhi did not
have territorial jurisdiction because the purchase order were issued by
the appellant/defendant from Jodhpur, and therefore, courts at Jodhpur
only will have territorial jurisdiction.
(ii) In my opinion, however, this argument of the
appellant/defendant is misconceived because the purchase orders
placed upon the respondent/plaintiff by the appellant/defendant are
addressed to the respondent/plaintiff at New Delhi, and therefore,
acceptance for the work done by the respondent/plaintiff for the
appellant/defendant would be when the purchase orders are received at
Delhi, and it is at the place of acceptance of the purchase orders that
the contract becomes complete, and which is at Delhi. Therefore,
courts at Delhi will have territorial jurisdiction.
8. It is also not disputed before this Court on behalf of the
appellant/defendant that payments have been made by the
appellant/defendant to the respondent/plaintiff at New Delhi.
9. Therefore, since the contract has been concluded at Delhi,
and payments have been made at Delhi, courts at Delhi will have
territorial jurisdiction vide A.B.C. Laminart (P.) Ltd. and Another v.
A.P. Agencies, Salem 1989 (2) SCC 163. The argument urged on
behalf of the appellant/defendant that courts at Delhi have no
territorial jurisdiction is therefore rejected.
10. On the merits of the matter, trial court has held that the
respondent/plaintiff actually completed the work is an undisputed fact,
and in my opinion this is a correct finding because the
appellant/defendant states that the work was done, but the work was
defective. Also, it is not disputed on behalf of the appellant/defendant
that the appellant/defendant did make the payment for an amount of
Rs. 12,37,782/- to the respondent/plaintiff. Therefore, completion of
the work by the respondent/plaintiff for the appellant/defendant cannot
be disputed, and thus the fact of the matter is that even if the
documents which have been proved by the respondent/plaintiff as
photocopies, and were thus such, which could not have been exhibited
being photocopies, however ultimately the object behind proving the
purchase orders documents was to prove that the work was allotted to
the respondent/plaintiff and the respondent/plaintiff did the work, and
these aspects are otherwise not disputed as per the pleadings before
and the evidence led in the trial court.
11(i) The next aspect argued on behalf of the
appellant/defendant was that the work done by the respondent/plaintiff
was defective and therefore the respondent/plaintiff was not entitled to
any further payment and all the payments which were due to the
respondent/plaintiff stand paid.
(ii) Trial court has rejected this argument giving the reason,
and which in the opinion of this Court is a valid reason, that if the
work was defective then there was no reason why during the period
that the work was done in the year 2000, the appellant/defendant had
not written even a single letter complaining to the respondent/plaintiff
that the work done by the respondent/plaintiff was defective. The first
and the only letter written by the appellant/defendant that the work
was defective was by the appellant's/defendant's Letter dated
15.01.2004/Ex.DW1/PX and which letter is nothing but a response
sent by the appellant/defendant to the Notice of the
respondent/plaintiff dated 27.01.2003. This reply in any case was
delayed by almost one year because the Notice was dated 27.01.2003
and the response of the appellant/defendant is dated 15.01.2004. Trial
court was therefore justified in rejecting the defence taken up for the
first time vide Letter dated 15.01.2004 by the appellant/defendant that
the work done by the respondent/plaintiff was defective.
12. I may note that the respondent/plaintiff has otherwise
proved sending of the Notice dated 27.01.2003 asking for payment of
interest at 24% per annum alongwith payment of work done as
Ex.PW1/F, and therefore, requirements of grant of interest under the
Interest Act, 1978 are satisfied.
13. No other argument is urged except the arguments which
have been referred to above.
14. In view of the aforesaid discussion, there is no merit in
the appeal. Dismissed.
NOVEMBER 16, 2018 VALMIKI J. MEHTA, J
Ne
