Shri SAI Constructions & Anr vs Pnc. Infratech Ltd. & Anr

Valmiki J. Mehta, J

This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit impugning the Judgment

of the trial court dated 18.12.2017 by which the trial court has dismissed the suit for recovery of Rs. 8,15,200/-alongwith interest filed by the

appellants/plaintiffs for the work done by appellants/plaintiffs for the respondents/defendants, despite the fact that the appellants/plaintiffs proved their

case by stepping into the witness box, and the respondents/defendants led no evidence.

The facts of the case are that the appellant no.1/plaintiff no.1 is the sole proprietorship concern of the appellant no.2/plaintiff no. 2. It was pleaded

that the appellants/plaintiffs from November 2012 to February 2013, did construction work for the respondent no. 1/defendant no.1/company at Tanda

Sohawal, UP, which included works of excavation, concreting, rod winding (MT) template setting etc. As requested by the respondents/defendants,

bills were submitted to the Head Office of the respondent no. 1/defendant no.1 at New Delhi. Bill dated 22.02.2013 was submitted by the

appellants/plaintiffs to respondent no. 1/defendant no.1 for a sum of Rs. 6,90,671.90/-, and since this bill was not paid even after 17 months of waiting,

a Legal Notice dated 07.08.2014 was sent to the respondents/defendants, and thereafter the subject suit was filed.

The respondents/defendants were served in the suit and appeared, but they failed to file their written statement in the prescribed period, and hence

their defence was struck off by the trial court vide order dated 15.01.2015. This order has become final. The appellants/plaintiffs led evidence of two

witnesses being the appellant no.2/plaintiff no.2 who was the proprietor of appellant no.1/plaintiff no. 1 and also one Sh. Vijay Kumar Singh.

The appellants/plaintiffs proved on record the material slips Ex.P-1 to Ex.P-3 showing that the respondents/defendants had supplied the materials

for execution of the work done by the appellants/plaintiffs under the contract. The appellant no.2/plaintiff no.2 as PW-1 deposed that the Original Bill

dated 22.02.2013 was retained by the respondents/defendants and he was given a photocopy of the same. In the cross-examination, appellant

no.2/plaintiff no.2 admitted that some payments were received by cheques from the respondents/defendants but those payments were not for the

works that were the subject matter of the suit, but were payments towards other works which were done by the appellants/plaintiffs for the

respondents/defendants.

In my opinion, once the appellants/plaintiffs have proved their case by leading evidence, mere cross-examination of witnesses of appellants/plaintiffs

would not mean that the appellants/plaintiffs have to fail. Though learned counsel for the respondents/defendants sought to rely upon certain

documents, however, these documents cannot be looked into by this Court at the appellate stage once such documents are not proved and exhibited in

the trial court, and these documents of the respondents/defendants are not proved and exhibited as neither documents were put in the cross-

examination of the appellant no.2/plaintiff no.2 and nor the respondents/defendants have led evidence to prove these documents.

Of course, I may clarify that the decree which will be passed in the present case will only be against the respondent no. 1/defendant no.1 company,

and respondent no. 2/defendant no.2 being only a Managing Director of the respondent no.1/defendant no.1 company, would not be personally liable

for the debts of the company.

I may also note that the appellant no.1/plaintiff no.1 filed and proved on record the service of the Legal Notice dated 07.08.2014, Ex.PW1/4, postal

receipts and tracking report Ex.PW1/5 (colly) to Ex.PW1/7 respectively, and therefore, appellants/plaintiffs will also be entitled to interest.

In view of the above discussion, this appeal is allowed. The impugned judgment of the trial court dated 18.12.2017 is set aside. The suit of the

appellants/plaintiffs is decreed for a sum of Rs. 8,15,200/- along-with pendente lite and future interest at 12% per annum simple. The

appellants/plaintiffs will also be entitled to costs of the suit as also of the appeal. Decree sheet be prepared. The trial court record be sent back.