Delhi High Court
M/S Srs Construction & Earth ... vs Senbo Engineering Ltd. & Another on 29 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 836/2016
% 29th October, 2018
M/S SRS CONSTRUCTION & EARTH MOVERS
..... Appellant
Through: Mr. R.K. Trakru, Advocate.
versus
SENBO ENGINEERING LTD. & ANOTHER
..... Respondents
Through: Mr. Ashok Anand, Advocate
with Mr. Rajesh Sharma,
Advocate (M. No.9810580541).
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 plaintiff in the suit
impugning the Judgment of the Trial Court dated 31.03.2016 by which
trial court has dismissed the suit for recovery of Rs. 5,91,616/- filed by
the appellant/plaintiff against the respondent/defendant. The amount
prayed in the suit was the claim for the balance due for the work done
by the appellant/plaintiff for the respondent no.1/defendant no.1 for
the Delhi Metro Rail Project at Delhi.
2. The facts of the case are that the appellant/plaintiff filed
the subject suit pleading that the respondent no.1/defendant no.1 was
given construction work by the Delhi Metro Rail Corporation Limited
at IGI Airport, Delhi and a part of this work was sub-contracted by the
respondent no. 1/defendant no. 1 to the appellant/plaintiff in the year
2008. The appellant/plaintiff after having done the work, raised
invoices totaling to Rs. 63,96,379/- against which an amount of Rs.
59,53,767/- was paid by the respondent no.1/defendant no.1 leaving a
balance due amount of Rs. 3,19,026/-. In addition to this amount, a
further amount of Rs. 51,295/- was payable to the appellant/plaintiff,
and therefore, the total due to the appellant/plaintiff was a sum of Rs.
3,70,321/-, and since this amount was not paid despite serving a Legal
Notice dated 04.01.2012, therefore the subject suit for recovery was
filed.
3. Respondent no. 1/Defendant no. 1 contested the suit by
filing the written statement-cum-counter claim, however the
indubitable position on record is that the respondent no.1/defendant
no.1 led no evidence as its General Manager, Sh. Somnath Mukherjee,
who filed affidavit by way of evidence did not appear for cross-
examination, and therefore, the respondents'/defendants' evidence was
closed vide order dated 10.04.2015, and this order has become final.
4. The trial court framed the following issues:-
"(i) Whether the suit filed by the plaintiff is barred by
limitation? OPD.
(ii) Whether defendant No.1 has made excess payment to the plaintiff
over and above the agreed amount. If so, its effect?
(iii) Whether the plaintiff is entitled to the decree of amount,
as prayed for? OPP
(iv) If answer to the aforesaid issue is in affirmative, then
whether plaintiff is entitled to interest. If so, at what rate and for
what period? OPP
(v) Whether the plaintiff is entitled to the decree of mandatory
injunction, as prayed for? OPP
(vi) Whether the defendant is entitled to the amount of
counter claim, as prayed for? OPD.
(vii) Whether the counter claim has not been verified,
instituted and filed by a duly authorized person? OPP
(viii) Whether the defendant has not paid proper court fees on
the amount of counter claim, as prayed for. If so, its effect? OPP.
(ix) Relief."
5. The appellant/plaintiff led evidence and proved its case
and documents as noted in para 8 of the impugned judgment, and this
para 8 reads as under:-
"8. Shri Ram Solanki has appeared as PW1 to prove his case. He has
proved the original work order dated 02.10.2008 as Ex.PW1/1, carbon
copy of running account bill dated 02.12.2008 as Ex.PW1/2, copy of
running signed account bill dated 01.05.2009 alongwith its covering
letter as Ex.POW1/3, print out of income tax statement under Section
203AA of the Income Tax Act for the years 2008-09 and 2009-10 as
mark A and mark B respectively, demand letters dated 21.12.2010,
20.04.2011 and 18.06.2011 as Ex.PW1/6, Ex.PW1/7 and Ex.PW1/8
respectively and copy of legal notice dated 04.01.2012 alongwith 9
original postal receipts and 6 AD cards as Ex.PW1/9 (colly). He also
examined his brother Mahender Singh Solanki as PW2."
6. The trial court has dismissed the suit by holding that
appellant/plaintiff though claimed to have raised various invoices
upon the respondent no. 1/defendant no. 1 for the work done,
however, only two invoices were filed and proved as Ex.PW1/2 and
Ex.PW1/3. The trial court has also discarded the copy filed by the
appellant/plaintiff of the statement of account of the respondent no.
1/defendant no. 1 as uploaded by respondent no. 1/defendant no. 1 on
its income tax site, as being violative of Section 65B of the Evidence
Act, 1872 as it was an electronic record and not duly certified as
required by this section.
7. In my opinion, the trial court has committed a grave error
in dismissing the suit inasmuch as not only the appellant/plaintiff
proved its case by filing the affidavit by way of evidence of the sole
proprietor of the appellant/plaintiff, Sh. Ram Solanki, as also another
witness, Mr. Mahavir Singh Solanki, the brother of Sh. Ram Solanki,
no evidence to the contrary has been led on behalf of the
respondents/defendants. It is also required to be noted that there is no
cross-examination by the respondents/defendants of the witnesses of
the appellant/plaintiff PW1 and PW2 that the total bills for the amount
of Rs. 63,96,379/- have not been raised upon respondent
no.1/defendant no. 1. In any case, the dues of the appellant/plaintiff
are duly shown in the Annual Tax Statements uploaded by the
respondent no.1/defendant no.1 for the years 2008-09 and 2009-10
which were proved as Ex.PW1/4 and Ex.PW1/5 and the trial court
wrongly discarded the same as not complying with Section 65B of the
Evidence Act inasmuch as before commencement of cross-
examination of PW1, no such objection was raised to exhibiting of
such documents by the respondent no.1/defendant no.1's and these
documents were the own accounts of respondent no. 1/defendant no. 1
uploaded in its annual statement on the income tax website. Once no
objection is raised, at the commencement of cross-examination, the
right to object to the exhibition of the document has been waived in
view of the judgment of the Supreme Court in the case of R.V.E.
Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple
& Anr., (2003) 8 SCC 752. Also, the counsel for the
appellant/plaintiff is justified in arguing that the trial court has
wrongly held that the appellant/plaintiff failed to prove all the invoices
inasmuch as in para 5 of the counter-claim filed by the respondent
no.1/defendant no.1, it is clearly admitted that the appellant/plaintiff
had in fact raised the total bills for Rs. 63,96,379/-.
8. Since the appellant/plaintiff led the requisite evidence and
proved the balance due for Rs.3,70,321/-, therefore appellant/plaintiff
was entitled to this amount from the respondent no. 1/defendant no. 1.
This Court may note that there cannot be any decree against the
respondent no. 2/defendant no. 2, who is only the Managing Director
of the respondent no. 1/defendant no.1 company, because there is no
pleading or case set up by the appellant/plaintiff that the liability of a
company being the respondent no. 1/ defendant no. 1 was also the
liability of respondent no.2/defendant no.2 who was the Managing
Director, and since the Managing Director is not pleaded to have stood
as a guarantor and nor had he agreed to pay the liability of respondent
no.1/defendant no.1 towards the appellant/plaintiff. The
appellant/plaintiff is also entitled to interest inasmuch as the
appellant/plaintiff has served upon the respondent no.1/defendant no.1
the Legal Notice dated 04.01.2012 which is duly proved alongwith
postal receipts and AD cards as Ex.PW1/9(colly).
9. In view of the aforesaid discussion, this appeal is
allowed. Impugned judgment of the Trial Court dated 31.03.2016 is
set aside. The suit of the appellant/plaintiff is decreed for a sum of Rs.
3,70,321/- alongwith interest @ 12% per annum simple from the date
of Legal Notice dated 04.01.2012 and till the filing of the suit on
03.05.2012, and thereafter, pendente lite and future interest till
realization of the decretal amount at the same rate of 12% per annum
simple. The appellant/plaintiff is also entitled to costs of the suit as
also the appeal. Decree sheet be prepared. Trial court record be sent
back.
OCTOBER 29, 2018 VALMIKI J. MEHTA, J
Ne
