Delhi High Court
Ushakant Buildwell (P) Limited. vs M/S. Chinar Shipping And ... on 7 February, 2019
#14
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CC No.101 /2018 CS(OS)1745/2015
USHAKANT BUILDWELL (P) LIMITED. ..... Plaintiff
Through: None
versus
M/S. CHINAR SHIPPING AND INFRASTRUCTURE (INDIA)
P LTD & ANR. ..... Defendants
Through Mr. Neeraj Jain, Advocate for
D-1/Counter Claimant.
% Date of Decision: 07th February, 2019
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral)
1. Present counter claim has been filed in CS (OS) No.1745/2015,
by the defendant no.1 against the plaintiff, for recovery of
Rs.1,62,13,857/- .
2. The prayer clause in the counter-claim is reproduced herein
below:-
"a. a decree in the sum of Rs. 1,62,13,857/- may kindly
be passed in favour of Defendant No. 1 and against
the Plaintiff.
b. Interest @ 18% per annum pendentelite and future
till the date of payment may be passed in favour of
Defendant No. 1 and against the Plaintiff.
c. A preliminary decree for accounts be passed in
favour of Defendant No. 1 and against the Plaintiff
directing the Plaintiff to render accounts for all
fraudulent and illegal lifting of the dredged sand from
the site from 10th February, 2014 till 9th October,
2014 and on such accounts being rendered a final
decree for recovery of the amount found due may
kindly be passed in favour of the Plaintiff and against
Defendant No. 1. Defendant No. 1 estimates that a
sum of Rs. 50,00,000/- over shall be due and payable
by the Plaintiff to Defendant No. 1 on this account
d. A decree of permanent injunction may be passed in
favour of the Plaintiff and against Defendant No. 1 in
the Counter Claimant restraining them their servants
and agents anywise from causing any prejudicial
action including writing any communication to any
person, body incorporate including Delhi Jal Board
or creating any impediment in the ingress and egress
of the manpower of Defendant No. 1, its agents and
servants and from the removal of the dredged sand
from the Hanuman Chowk (Wazirabad) and Sonia
Vihar.
e. Cost of the Counter claim be awarded
f. Pass such other or further order(s) as may be deemed
fit and proper in facts and circumstances of the
present case."
3. On 11th July, 2017, the plaintiff's suit for specific performance,
declaration and permanent injunction bearing number CS (OS) No.
1745/2015, was dismissed in default and on account of non-prosecution.
4. On 12th January, 2018, since none appeared for the plaintiff, it
was proceeded ex-parte in the counter-claim.
5. At the outset, learned counsel for defendant no.1 / counter-
claimant gives up prayers (c) and (d) of the prayer clause of the counter
claim. The statement made by learned counsel for defendant no.1 /
counter-claimant is accepted by this Court and defendant no.1 / counter-
claimant is held bound by the same.
6. The contentions and submissions advanced by the learned
counsel for the defendant no.1 / counter-claimant are as under:-
(i) Vide Contract Agreement dated 15th October 2013, the
Delhi Jal Board awarded dredging work in the Yamuna
River to the defendant no.1 / counter-claimant at two sites
of Hanuman Chowk (Wazirabad) and Sonia Vihar. The
defendant no.1 undertook the aforementioned work in a
Joint Venture with the technical support of defendant no.2
(ii) The defendant no.1 / counter-claimant and defendant no.2
entered into an Agreement and Supplementary Agreement
dated 14th November 2013 and 6th February 2014
respectively, with the plaintiff to lift the dredged sand
@Rs. 525 per cubic metre.
(iii) The plaintiff had to deposit the advance amount at the time
of lifting the dredged sand. However, the plaintiff was not
regular in the depositing the said amount. Since the
plaintiff was not performing its part of the Agreements, the
defendant no.1 / counter claimant terminated the said
Agreements dated 14th November 2013 and 6th February
2014 respectively vide letter dated 11th November 2014.
(iv) The plaintiff filed a suit bearing no. CS(OS) 1745/15 for
specific performance, declaration and permanent
injunction. The defendant no.1 filed its written statement
and counter claim on 20th November, 2015.
(v) The plaintiff overloaded its trucks and dumpers and
unauthorisedly and fraudulently removed more dredged
sand than agreed in the Agreements dated 14th November
2013 and 6th February 2014. He states that the plaintiff
lifted the dredged sand but did not clear the amount due to
the defendant no.1/counter claimant.
(vi) The intent of the plaintiff in filing the suit was to stop the
work of the defendant no.1/counter claimant and pressurize
it to give up its claim on the sand already lifted by the
plaintiff.
(vii) On 11th July 2017 the plaintiff's suit was dismissed in
default and on account of non-prosecution.
7. The defendant no.1 / counter-claimant has filed its ex parte
evidence by way of affidavit of Shri Avnindra Kumar Tripathi (DW1),
managing director of the defendant no.1 company.
8. The defendant no.1 witness (DW1) has proved the contract
agreement dated 15th October 2013, with the Delhi Jal Board as Exhibit
DW1/3. He has proved that the Agreement dated 14 th November 2013
as Exhibit DW1/7 and Supplementary Agreement dated 6 th February
2014 with the plaintiff as Exhibit DW1/8. He has proved that the
termination letter dated 11th November 2014 issued by the defendants to
plaintiff as Exhibit DW1/4. He has proved the invoices issued by
defendant no.1 to the plaintiff as Exhibit DW1/6. He has proved the
defendant no. 1's / counter claimant's statement of account as DW1/5.
9. From the un-rebutted evidence on record, it is apparent that the
plaintiff did not pay the defendant no.1 / counter claimant for lifting and
removing the dredged sand thereby causing financial loss to defendant
no.1 / counter claimant. Accordingly, this Court is of the opinion that
the plaintiff failed to perform its obligation under the Agreements dated
14th November 2013 and 6th February 2014.
10. Consequently, the counter claim is decreed in favour of the
defendant no.1/counter claimant and against the plaintiff for
Rs.1,42,85,337/-along with pendente lite and future interest at 7% per
annum. This Court may mention that it is awarding the interest at 7%
per annum as that is the normal rate at which the banks are lending
monies now-a-days. The defendant no.1/counter claimant is also held
entitled to actual costs of litigation. The costs shall amongst others
include the lawyer's fees as well as the amount spent on Court-fees. The
defendant no.1/counter claimant is given liberty to file on record the
exact cost incurred by it in adjudication of the present suit. Registry is
directed to prepare a decree sheet accordingly.
MANMOHAN, J
FEBRUARY 09, 2019
rn/sp
