M/S N.K. Kapur & Co. Pvt. Ltd. vs M/S Pico Deepali Overlays ...
2019 Latest Caselaw 1796 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 2114/2013

       M/S N.K. KAPUR & CO. PVT. LTD.                 ..... Plaintiff
                      Through   Mr.K.K.Bhuchar, Advocate.


                            Versus


       M/S PICO DEEPALI OVERLAYS CONSORTIUM                      ..... Defendant


%                                    Date of Decision: 01st April, 2019

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN

                            JUDGMENT

MANMOHAN, J (Oral):

1. Present suit has been filed for recovery of Rs.1,92,70,252.00/- and pendente lite and future interest @ 18% per annum. The prayer clause in the present suit is reproduced hereinbelow:-

"In view of the aforementioned facts and circumstances, it is most respectfully prayed that:

a. a decree in the sum of Rs.1,92,70,252.00 along with future interest @18% per annum from the date of the suit till realization be passed in favour of the Plaintiff and against the Defendant.

b. cost of the present suit be also award in favour of the

Plaintiff and against the Defendant.

c. Pass such other or further order(s) as may be deemed fit and proper in facts and circumstances of the present case."

2. Vide Order dated 10th April, 2015 the following issues were framed :

"(i) Whether the plaintiff has validly carried out the work as stated in the invoices which are subject matter of the present suit? OPP

(ii) Whether the work said to have been executed by the plaintiff was not as per the terms and conditions agreed upon by the parties? OPD

(iii) Whether the agreement between the parties was a back to back contract whereby the payment was to be tendered by defendant No.1 on receipt of payment for the principal contractor? If so its effect? OPD

(iv) Relief."

3. Since the defendant did not enter appearance after 15th November, 2016, it was proceeded ex parte vide order dated 27th February, 2018. The plaintiff has filed its evidence by way of affidavit

4. The contentions and submissions advanced by learned counsel for the plaintiff are as under:-

(i) During the preparation of the Common Wealth Games, the defendant was appointed as the main contractor to carry out certain works for and on behalf of the Common Wealth Games Organising Committee. The defendant appointed the plaintiff as the sub-contractor vide agreement dated 23rd June, 2010.

(ii) The work under the agreement comprised both civil and electrical work. The civil work included manufacture, supply, erection and dismantling of counters and removing the same from the Jawaharlal Nehru Stadium and Siri Fort clusters as well as for manufacture, installation of water storage tanks with stands, laying of pipes etc. The electrical work included supply and fixing 5 AMP plug wiring, panel boards, voice points, data points etc on lease basis.

(iii) The plaintiff carried out the jobs assigned to it punctually and satisfactorily and submitted its bills from time to time as per agreement. Some orders were placed orally but the defendant paid the initial 30% of the bill amount at the time of placing of the order. The defendant fell in arrears and despite promises failed to make payments.

(iv) From the plaintiff's statement of account as on 31st March, 2011, there is an amount of Rs.1,32,89,830/- payable by the defendant to the plaintiff. As per the agreement dated 23rd June, 2010 all the amounts were payable immediately on raising the invoices

(v) At no stage, during the contract period neither the defendant nor the employer raise any objection either to the works and installations carried out by the plaintiff or to the invoices submitted by the plaintiff.

(vi) Despite admitting the genuineness and the correctness of the bill, the defendant failed to make the payment.

(vii) The plaintiff sent notice dated 22nd September, 2012 to the defendant demanding the payments which was duly received on 27th September, 2012.

(viii) The defendant filed its written statement which was a written statement of denial and had two main pleas :

a) That works carried out were not in conformity with the invoices;

b) Payments to the plaintiff were dependent on the payments made by the employers to the defendant.

5. Learned counsel for the plaintiff states that the defendant withheld the due amount to the plaintiff without any cogent reason. He further states that the plaintiff is entitled to Rs.1,32,89,830.00/- along with interest @18% per annum on the principal amount.

6. To discharge its onus of proof with regard to issue No.1, the plaintiff has proved the following documents:-

(i) Ex.P3 - Agreement dated 23rd June, 2010.

(ii) Ex.PW1/4 to Ex.PW1/9 and Ex.PW1/67 - work orders.

(iii) Ex. PW1/52 is Statement showing invoices in respect of each job, the payment made against such invoices and the balance due from the defendants.

(iv) Ex. P1 is a copy of legal notice dated 22nd September, 2012.

7. Having perused the paper book and the evidence on record, this Court is of the opinion that the defendants placed several work orders upon the plaintiff pursuant to which invoices were issued by the plaintiff after

completion of the work. Also, despite issuance of a legal notice dated 22nd September, 2012 calling upon the defendant to clear the outstanding dues, the defendant has neither replied to the same nor cleared the outstanding dues till date.

8. Consequently, in the opinion of this Court, the plaintiff has proved issue No.1 and it is decided in favour of the plaintiff and against the defendant.

9. Issues No.2 and 3 are decided against the defendant as it failed to discharge the onus of proof cast on it by leading any evidence.

10. Consequently, this Court is of the opinion that the remaining amount being Rs.1,32,89,830/- (Rupees One Crore, Thirty Two Lacs, Eighty Nine Thousand Eight Hundred and Thirty only) has to be paid by the defendant to the plaintiff. Accordingly, the present suit is decreed against the defendant for Rs.1,32,89,830/- along with interest @7% along with costs incurred by the plaintiff. This Court may mention that it is awarding pre-suit, pendent lite and post-suit interest at 7% per annum as that is the normal rate at which the banks are lending monies now-a-days. The costs shall amongst others include lawyers' fees as well as the amounts spent on purchasing the Court fees. The plaintiff is given liberty to file on record within one week the exact cost incurred by them in adjudication of the present suit, if not already filed. Registry is directed to prepare a decree sheet accordingly. With the aforesaid observations, present suit stands disposed of.

MANMOHAN, J APRIL 01, 2019 KA