Marwar Hotels Pvt. Ltd vs Surya Enterprises, Through Its Proprietor Sh. Vinod Kumar

Sl.

No.",Date,"Contract(s)/Purchase

Order No.",Subject Matter,Amount Rs.

1.,27.9.99,MHL/PROJ/J/0139,"Work for water

tanks and swimming

pool.

Additional work as

per verbal order","9,03,000

21,594.00

2.,15.5.2000,MHL/PROJ/J/0218,"F or the work of

filling expansion

joints with

Polysulphide","6,05,600

3.,26.7.2000,MHL/PROJ/J/0335,"W a t e r proofing

treatment to roof

terrace (WATTA)","2,66,000

4.,4.8.2000,MHL/PROJ/J/0326,"For Silicone sealant

work in windows","2,30,000

5.,,TOTAL,"20,26,194 (Rs. Twenty Lacs Twenty Six

Thousand One Hundred Ninety Fou

only)",

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/-.",,,,

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.,,,,

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,,,,

Whether the suit is barred by limitation as alleged in para no.16 in the WS? OPD,,,,

To what principal amount, if any, is the plaintiff entitled from the defendant? OPP",,,,

Whether the plaintiff is entitled to any interest, if so, at what rate, for which period and to what amount? OPP",,,,

Relief.â€​,,,,

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.",,,,

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.,,,,

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.,,,,

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 anyÂ,,,,

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.Â,,,,

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.,,,,

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. Â",,,,

No other argument is urged except the arguments which have been referred to above.,,,,

In view of the aforesaid discussion, there is no merit in the appeal. Dismissed.",,,,