Union of India (UOI) and Others vs Adwave

Sanjay Kishan Kaul, J.—The plaintiff (i.e., respondent herein) filed a suit on the Original Side of this Court for recovery of Rs. 1,33,089/- with pendent lite interest @ 18% per annum and future interest on the decretal amount @ 18% per annum till realization, with costs. In terms of the impugned order dated 08.12.1992, the suit has been decreed in favour of the plaintiff for a sum of Rs. 63,700/- with proportionate costs and interest @ 12% per annum from date of the suit till realization.

The case of the plaintiff as averred in the plaint is as under.

The plaintiff in the suit is a registered partnership firm carrying on the business of construction of buildings and publicity agents. Ms. Komal G.B. Singh is one of the partners and Managing Partner of the plaintiff firm, who was competent and authorized to file the suit and sign and verify the pleadings.

The plaintiff was entrusted the work of construction of the Delhi Police Pavilion at Pragati Maidan, New Delhi with a stipulation that the work was to be completed by 13.11.1981. There were 3 works regarding which offer was given by the plaintiff on 30th and 31st October, 1981. One of the works was in respect of labour and raw materials etc. for which the estimate of Rs. 75,000/- was given, which was reduced after negotiations with the concerned authorities to Rs. 70,700/-. The second estimate was for a sum of Rs. 73,000/- for creative work and this amount was reduced after negotiations to Rs. 63,000/-. The third estimate was for production of A.V. and hire equipment for the Delhi Police Pavilion at the India International Trade Fair, 1981 for a sum of Rs. 48,300/-, which was reduced after negotiations to Rs. 41,300/-. The plaintiff had also stipulated in respect of all the three works that 50% payment would be made immediately, 25% of the balance on 10.11.1981 and the balance on 14.11.1981.

The work was started by the plaintiff after negotiations, though letter dated 12.11.1981 (Ex. P-1) was issued by the Commissioner of Police, Delhi under the signatures of Deputy Commissioner of Police, Headquarters-I, Delhi to the effect that the job was allotted to the plaintiff in terms of the estimates, revised by the plaintiff. It was further provided in the letter that the work should be executed in accordance with the specifications and designs and the work was to be completed by 13.11.1981.

It was further claimed by the plaintiff that besides the work mentioned in the said three estimates, the plaintiff was required to carry out additional work of the value of Rs. 28,089/- as per the details mentioned in para 3 (wrongly shown as para 4) of the plaint. The plaintiff pleaded that the work was completed as per the agreement by due date for the exhibition and a sum of Rs. 50,000/- was received by the plaintiff on 06.11.1981 and another sum of Rs. 20,000/- on 09.11.1981. It was also pleaded that the balance amount of Rs. 1,05,000/- was due to the plaintiff on 14.11.1981, which had not been paid out of the agreed contract and another sum of Rs. 28,089/- for the additional work. It was also claimed that notice u/s 80 of the Civil Procedure Code, 1908 was issued to the defendants making a demand of the amount of Rs. 1,33,089/-.

The defendants (i.e., appellants herein) contested the suit by filing a written statement. A preliminary objection was raised for want of knowledge that the plaintiff was a partnership firm and Ms. Komal G.B. Singh was competent to sign and verify the suit. However, it was admitted that the work with regard to the Police Pavilion at the India International Trade Fair, 1981 was awarded to the plaintiff and that the fair was to commence from 14.11.1981 till 04.12.1981. It has also been admitted that after inviting tenders, negotiations took place with the plaintiff and work for the total sum of Rs. 1,75,000/- was awarded to the plaintiff. It was claimed that to facilitate the start of the work immediately by the plaintiff, a sum of Rs. 50,000/- was paid on 06.11.1981 and another sum of Rs. 20,000/- was paid on 09.11.1981. It was also claimed that instead of completing the work, it was left in between on 12.11.1981. It was further averred that on account of the work being left incomplete by the plaintiff, the inauguration of the Police Pavilion had to be postponed to 16.11.1981 and the work was got completed with great difficulty from another firm viz. M/s. Architects Forum. It was pleaded that that no additional work was either assigned or carried out by the plaintiff. It is, in these circumstances, that the claim of the defendants that nothing was due to the plaintiff and so a prayer was made that the suit may be dismissed.

On the basis of the pleadings, the following issues were framed on 06.02.1986:

Whether the plaintiff is a registered partnership firm and Ms. Komal G.B. Singh is a registered partner competent to file the present suit? OPP.

Whether the plaintiff executed the total work of construction of Delhi Police Pavilion? It if, what was the extent of the work not completed? OP Parties.

Whether the defendant asked the plaintiff to execute additional work referred to in para 3 of the plaint? OPP.

If issue No. 3 is held in favour of the plaintiff, to what amount is the plaintiff entitled for the additional work? OPP.

To what amount is the plaintiff entitled? OPP.

Whether the plaintiff is entitled to any interest, if so at what rate? OPP.

Relief.

In support of its case, the plaintiff examined Shri Rajeev Mehrotra as PW-1, Ms. Komal G.B. Singh, partner of the plaintiff firm as PW-2 and Mr. Siddharth Basu as PW-3. The defendants in support of their case examined Mr. Maxwell Pereira as DW-1, who was at the relevant time Deputy Commissioner Police, Delhi State Industrial Development Corporation in 1981, Mr. M.B. Kaushal as DW-2, who was Addl. Commissioner of Police (Admn.), Delhi Police in August 1981 and Shri Ravinder Chaudhury, Sole Proprietor of M/s. Architects Forum as DW-3.

The learned Single Judge has held Issue No. 1 in favour of the plaintiff. It has been noted that the originals of Ex. PW-2/1 (photocopy of the Certificate of Registration) and Ex. PW-2/2 (photocopy of the certificate issued by the Registrar of Firms) were brought by the witness (PW-2) when she was examined. The learned Single Judge has also noted that there was nothing on record to show that the plaintiff was not a registered partnership firm.

The learned Single Judge has, after perusing the pleadings and the evidence placed on record, held in respect of Issue No. 2 that the plaintiff had completed the work in respect of Item Nos. 1 & 2 in time, but the plaintiff could not claim any amount in respect of Item No. 3. The learned Single Judge has noted that Ms. Komal G.B. Singh had made a categorical statement that the work of labour and raw material as well as creative work had been completed on 12.11.1981 and that bills were sent to the defendants and in spite of demand, the balance had not been paid. The learned Single Judge has also taken note of the letter dated 21.11.1981 (Ex. P-14) which was sent by the plaintiff to the Commissioner of the Police, receipt of which had been admitted by the defendants. A perusal of this letter showed that the plaintiff had claimed having completed 2 works and a demand was made of the balance amount and bills for a sum of Rs. 35,700/- and Rs. 28,000/- were sent respectively along with the said letter. It has been taken note of by the learned Single Judge that there has been no reply to this letter. A categorical finding was recorded by the learned Single Judge that the relevant record indicating how much work had been done by Mr. Ravinder Chaudhury for the plaintiff and how much work was done by Mr. Ravinder Chaudhury at the instance of the Commissioner of Police had not been produced and the defendants did not take any steps to get the work carried out by the plaintiff assessed before Mr. Ravinder Chaudhury was asked to carry out further work. Even photographs of the work carried out by the plaintiff had not been taken. The learned Single Judge has also taken note of the letter dated 02.12.1981 (Ex. P-16), written by the plaintiff to the Commissioner of Police, in which a prayer was made to preserve the work carried out by the plaintiff till the accounts were settled and the details of the work carried out by the plaintiff were mentioned therein. No action was taken on this letter. The learned Single Judge has held that there was no cogent and/or reliable material produced by the defendants to indicate that the work was not completed and how much work was left incomplete and, thus, it was held that the work in respect of Item Nos. 1& 2 was completed. In respect of Item No. 3, the learned Single Judge has noted that there was no detailed information about the number of slides/tapes as also the fact that the plaintiff had written a letter dated 02.12.1981 (Ex. P-16) not claiming anything in respect of this work.

The learned Single Judge has dealt with Issue Nos. 3 & 4 together and the same have been decided against the plaintiff. It has been observed by the learned Single Judge that the plaintiff has not produced any evidence in proof of having done additional work and hence the plaintiff has been unable to prove the issue.

In regard to Issue No. 5, the learned Single Judge has held that the plaintiff is entitled to the amount of Rs. 63,700/- being the balance amount payable in respect of Item Nos. 1 & 2.

In respect of Issue No. 6, the learned Single Judge has granted interest @ 12% per annum taking note of the fact that the transaction was a commercial one and that the amount had not been paid by the defendants in spite of the demand having been made by the plaintiff.

In respect of Issue No. 7, the suit of the plaintiff has been decreed for a sum of Rs. 63,700/- with proportionate costs and interest @ 12% per annum from date of the suit till realization.

The Learned Counsel for the appellant has sought to assail the finding of the learned Single Judge in respect of Issue No. 2 and consequently the decree which has been passed in favour of the respondent.

The Learned Counsel for the appellant submitted that there was no evidence on record to show that the Pavilion was made ready by the respondents on 13.11.1981 except the bald statement of PW-2. It was further submitted that since the learned Single Judge had disbelieved the statement of the said witness on the aspect of additional work and AV, her bald statement that the pavilion was completed on 13.11.1981 could not have been accepted. Reliance was also placed on the cross-examination of PW-2 where it was admitted that for part of the work Item No. 1 in Ex. P-1, M/s Architect Forum was engaged by her. It was further pleaded that PW-2 admitted that in her letter sent to the police, she did not mention about the happenings of 13th, 14th and 15th November, 1981.

The Learned Counsel for the appellant also submitted that the work had to be done by the respondent as per Ex. P-1 and Ex. D-1, D-2 and D-3 were only estimates. A reference in this regard is made to the cross-examination of PW-2 and DW-3. It was further submitted that Ex. D-1, D-2, and D-3 were estimates and after negotiations, the contract was finalized between the parties was Ex. P-1.

The Learned Counsel for the appellant also submitted that the respondent was not returning some important documents of the Police Department and that an FIR was lodged and the documents were recovered and later on legal advice, the matter was not pursued further.

The Learned Counsel for the appellant also placed reliance on the evidence of Shri Maxwell Pereira (DW-1) where the said witness in his cross-examination has given the details about the estimate of the work done by the respondent and why persons from other pavilions could not be called for as everybody was hard pressed for time. Reliance was also placed on the affidavit of Sh. M.B. Kaushal (DW-2), which mentions the contract in question and the respondent leaving the same in between.

The Learned Counsel for the respondent submitted that the respondent had completed the entire work entrusted to it and has filed various documents and also produced three witnesses in support of the same. Reliance was placed upon Ex. P-2, P-13, P-14, P-16 & P-17, which have been proved by PW-2, being the Managing Partner of the respondent firm. It was also submitted that the appellants, despite having been intimated, did not come forward to take possession of the pavilion. It was further submitted that the whole controversy arose as the appellants wanted the respondent to do some additional work without any payment to which the respondent did not agree and to further harass the respondent, a false FIR was filed which was not pursued later on.

The Learned Counsel for the respondent also submitted that the claim of the appellants that the work had not been completed is without any supporting documents and is only based on bald statements. A reference was made to the cross-examination of DW-3, where the said witness on being shown Ex. D-1, D-2 and D-3 admitted that the work shown in the said documents/orders had nothing to do with the job that was assigned to him by the Police Department and that he did the job of display boxes for the appellants which is not part of Ex. D-1, D-2, and D-3.

The Learned Counsel for the respondent also placed reliance upon the fact the request of the respondent, which was made to the appellants, that the work executed by the respondent should be preserved, was not acceded to. A reference in this regard is made to Ex. P-16 where the same has been stated.

The Learned Counsel for the respondent also submitted that it had claimed the amount for works executed in terms of Ex. P-1 relating to three items and also for a fourth item, i.e., additional work and that the learned Single Judge has upheld the claim for the first two items and the claim for the third item was disallowed as the respondent/plaintiff had not furnished detailed information about the number of slides/tapes of audio visual work as also the respondent had written a letter dated 02.12.1981 (Ex.P-16). The claim of additional work was also disallowed for want of evidence.

Lastly, it was submitted that the learned Single Judge had exhaustively dealt with the documents and evidence produced by the parties and that there no was no infirmity with the impugned order and hence, the appeal should be dismissed.

In our considered view, the submission of the Learned Counsel for the appellants that there is no evidence on record to show that the Pavilion was ready on 13.11.1981 is without any merit. The learned Single Judge has correctly taken note of the fact that the respondent had sent a letter dated 21.11.1981 (Ex. P-14) to the Commissioner of Police, claiming to have completed two works and a demand was made of the balance amount. Bills for a sum of Rs. 35,700/- and Rs. 28,000/- were also sent alongwith the said letter after giving adjustment for the amount received in advance. The appellants did not even reply to this letter. The learned Single Judge has also taken note of the fact that the respondent had sent a letter dated 2.12.1981 (Ex. P-16) to the Commissioner of Police, in which a request was made to preserve the work carried out by the respondent till the accounts were settled and details of work carried out by the respondent were mentioned/recorded. Another letter dated 17.12.1981 (Ex. P-17) was sent by the respondent to the Commissioner of Police, asking for payment of the balance amount but to no avail. The learned Single Judge has also taken note of the cross-examination of Mr. Ravinder Chaudhury (DW-3), where a suggestion was put to him that he was to be paid a sum of Rs. 50,000/- for carrying out the work envisaged in Item No. 1 and part of the work envisaged in Item No. 2 of Ex. P-1 to which the answer was that he did not remember correctly. In view of the above facts, it can hardly be said that there was no evidence on record to prove that the respondent had completed the work on 13.11.1981.

It is the admitted position that Ex. D-1, D-2 and D-3 were only estimates. It has been correctly observed by the learned Single Judge that Ex. P-1 is an approval of the three estimates given by the respondent to the appellants. In Ex P-1, it has been stated that the work should be executed in accordance with the specifications and designs laid down in the quotations and also given by the Committee. Hence, the said letter (Ex. P-1) itself makes it clear that the work had to be done as per the quotations.

In so far as the submission of the Learned Counsel for the appellants that an FIR had been lodged and later on legal advice, the matter was not pursued further, the learned Single Judge had correctly noted that even a copy of the challan had not been filed in Court. Since neither any evidence has been produced in this respect more particularly when the said matter was not pursued further nor any categorical finding has been recorded by the learned Single Judge, the same is liable to be ignored.

The Learned Counsel for the appellants placed reliance on the evidence of Sh. Maxwell Pereira (DW-1) and Sh. M.B. Kaushal (DW-2) to contend that the respondent did not complete the work as per the contract and why persons from other pavilions could not be called. In our considered view, the appellants have not produced any evidence other than mere statements of their witnesses to contend that the work had not been completed on 13.11.1981. No evidence has been brought on record to show the amount of work which had been carried out by Mr. Ravinder Chaudhury (DW-3) for the respondent and at the instance of the Commissioner of Police. The appellants did not even care to take photographs of the work carried out by the respondent or to preserve the same even though the respondent had sent a letter dated 2.12.1981 (Ex.P-16) asking for the same.

In view of the aforesaid, we find no merit in the appeal and the same is dismissed with costs of Rs. 25,000/-.