Final Order 1

Order Details: Copy of Judgment
Pdf Text: Comm.Suit No. 19/2019. 1 Judgment.
MHCC010044812019
Presented on : 20-04-2019
Registered on : 10-06-2019
Decided on : 27-01-2021
Duration : 1 years, 9 months, 7 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMERCIAL SUIT NO. 19 OF 2019
Exh.23.
M/s Snehal Engineering
Proprietress Mrs. Varsha Akaram Jadhav
Through Mr. Sampat Ananda Patil, C.A.
Age 36 years, Occupation: Service
Room No.03, Janki Nivas, Near Police
Patil Building, Jagdish Bhoir Road,
Bhandup Village, Bhandup (E),
Mumbai400 042 ...Plaintiff
Versus
Transwat Infrastructure Pvt. Ltd.,
C3, 2 nd Floor, 82868/K/1 & 2, Kimtee
Square Road No.12, Banjara Hill,
Hydrabad – 500 034 ...Defendant
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 27th JANUARY, 2021.
Mr. A.A.Mir with Mr. Shreeram Gaddamwar, Advocate for Plaintiff.
Mr. Pravin Palhade, Advocate for Defendant.
JUDGMENT
This is a suit for recovery of Rs.8,65,192/ (Rupees Eight
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Lakhs Sixtyfive Thousand One Hundred Ninetytwo Only) with interest
at bank rate from 17/04/2018. The suit is based on agreement dated
24/11/2017, different invoices and ledger account maintained by
plaintiff.
Plaintiff’s case is narrated as follows :
2. Plaintiff is a proprietor of M/s. Snehal Engineering.
Plaintiff is a consultant. Defendant also deals in same business of
consultancy as that of plaintiff. Defendant was appointed as a
Consultant by Wadia Techno Engineering Services Limited, for traffic
survey of road in Nasik city under the programme of “Smart City”.
3. Plaintiff continued that in response to principal agreement,
defendant has appointed subconsultant to the plaintiff vide agreement
dated 24/11/2017. As per terms and conditions mentioned in the
agreement dated 24/11/2017, plaintiff has carried out survey of ‘smart
city programme’ at Nasik. In view of the work completed by the
plaintiff, three invoices dated 29/11/2017, 11/12/2017 and
06/01/2018 were submitted to the Wadia Techno Engineering Services
Limited and the defendant. Plaintiff has received part payment.
However, in view of ledger account maintained by plaintiff, the amount
of Rs.8,65,192/ (Rupees Eight Lakhs Sixtyfive Thousand One Hundred
Ninetytwo Only) was due towards defendant. After repeated demands
and a notice by R.P.A.D. dated 30/10/2018 addressed to the C.E.O. of
M/s. Wadia Techno Engineering Services Limited, plaintiff has not
received any payment. There was no reply received by the plaintiff.
Hence, he preferred this suit for recovery of Rs.8,65,192/ (Rupees
Eight Lakhs Sixtyfive Thousand One Hundred Ninetytwo Only)
alongwith bank interest from 17/04/2018. Hence, this suit.
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4. Defendant has resisted the suit vide Exh.5. According to
defendant, plaintiff has suppressed the material facts. It is continued
that agreement dated 24/11/2017 is null and void. There is no
territorial jurisdiction vests with this Court. Hence, it is prayed to reject
the suit. It is admitted that M/s. Wadia Techno Engineering Services
Limited is the principal contractor of ‘Nasik Smart City Programme’.
Plaintiff is failed to submit report to the defendant. On the contrary,
plaintiff has sent all report and invoices, bills etc. directly to the M/s.
Wadia Techno Engineering Services Limited. According to defendant,
there is no demand legal notice issued to the defendant. Therefore,
according to defendant, suit is not tenable. It is added that plaintiff has
colluded with M/s. Wadia Techno Engineering Services Limited. It is
added that plaintiff himself has violated some terms of agreement dated
24/11/2017. In short, it is prayed to dismiss the suit.
5. In view of aforesaid rival contentions, my learned
Predecessor has framed the issues vide Exh.8. In view of evidence
submitted by both side, my findings on said issues are given as follows :
SR.NO. ISSUES FINDINGS
1. Whether the plaintiff proves that there
was subconsultancy agreement executed
between the plaintiff and defendant on
24.11.2017 ?
In Affirmative.
2. Whether the plaintiff is entitled for the
amount of Rs.8,65,192/ ?
In Affirmative.
3. Whether the defendant proves that the
subconsultancy agreement is null and
void ?
In Negative.
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4. Whether this court has jurisdiction to
entertain and try the suit ?
In Affirmative.
5. Whether the plaintiff is entitled for the
reliefs claimed ?
In Affirmative.
6. What order and decree ? As per final order.
REASONS
AS TO ISSUE NO.1 :
6. In support to the plaint, plaintiff has examined three
witnesses in total. Defendant has examined only one witness. It is not
much disputed that agreement was executed between plaintiff and
defendant on 24/11/2017. In view of ledger account maintained by
plaintiff, about 75% payment was given by the defendant and received
to the plaintiff.
7. On perusal of account statement vide Exh.19, there are
references of receipt from the bank account of SBI No. 88695.
Therefore, existence of subconsultancy executed between plaintiff and
defendant on 24/11/2017 is not much disputed. Hence, Issue No.1 is
replied in affirmative.
AS TO ISSUE NO.3 :
8. This issue came to be framed as in written statement vide
Exh.5, para no.4, it is mentioned by the defendant that agreement dated
24/11/2017 is null and void as it is not duly stamped. It is material to
note that in view of terms and conditions mentioned in the agreement
dated 24/11/2017, almost 25 Lakhs came to be paid by the defendant
to the plaintiff. The impugned agreement is in respect of traffic survey
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Comm.Suit No. 19/2019. 5 Judgment.
under the programme of smart city at Nasik. There is no case of
defendant that impugned agreement requires to be impounded for non
payment of stamp duty. The said agreement is in respect of project and
its terms and conditions. As mentioned above, around 25 Lakhs have
been admittedly paid by the defendant. Therefore, said agreement
cannot be termed as null and void. Hence, Issue No.3 is replied in
negative.
AS TO ISSUE NO.4 :
9. The office of plaintiff is situated in Bhandup (East) at
Mumbai. Same address has been mentioned in subconsultancy
agreement vide Exh.14. Plaintiff has received the payment at the
registered office at Mumbai.
10. On perusal of entire agreement, there is no clause to limit
the jurisdiction in particular court or to oust the jurisdiction of court at
Mumbai. Therefore, as a part of transaction occurred within vicinity of
territorial jurisdiction of this Court, this Court vests with the
jurisdiction. Hence, Issue No.4 is replied in affirmative.
AS TO ISSUE NOS.2 AND 5 :
11. The weight of evidence depends on the rules of common
sense. Appreciation of evidence is a very difficult and delicate task.
Before adverting to the factual aspect and nature of transaction between
the parties, it would be appropriate to peruse guidelines of the Hon’ble
Apex Court in respect of appreciation of evidence. In Cement
Corporation of India Ltd. Vrs. Purya reported in 2004 (8) SCC 270 it
is observed that, acceptance of a evidence is not a term of art. It has an
etymological meaning and envisages exercise of judicial mind to the
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materials on record. Acceptance of evidence by a court would be
dependant upon the facts of the case and other relevant factors. A piece
of evidence in a given situation may be accepted by a court of law but in
another it may not be. Considering these observation as guidelines, it is
solemn duty on my part to appreciate the evidence.
12. PW 1 Sampat Ananda Patil submits evidence affidavit vide
Exh.7 and 9. PW 1 identifies the documents, invoices and account
maintained by the plaintiff, from Exh.13 to 18. All documents were in
possession of plaintiff. According to PW 1, in view of agreement dated
24/11/2017 vide Exh.14, assigned work came to be completed by the
plaintiff as per terms in the agreement.
13. PW 1 has narrated the details of amount due towards
defendant as follows :
Date of payment Amount
29122017 Rs.15,09,94800
18012018 Rs.02,25,00000
31032018 Rs.01,47,00000
Rs.01,39,81000
17/04/2018 Rs.05,00,00000
Total Billed Amount Rs.33,87,19000
Less Paid Rs.25,21,99800
Balance payable Rs. 8,65,19200 subject matter of suit ”
14. In crossexamination it is admitted by PW 1 that after
completion of the work within time limit as per agreement, the data and
bills were submitted to M/s. Wadia Techno Engineering Services.
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However, it is added by PW 1 that copy of every document was also
forwarded to the defendant. It is admitted by PW 1 that notice vide
Exh.18 was sent to Wadia Techno Engineering Services and not to the
defendant. It is outrightly denied by this witness that contractual work
was not completed within time limit.
15. PW 2 Mohddinsha Makandar supported the plaintiff. He
has accepted the terms and conditions between the parties as per
agreement vide Exh.14 dated 24/11/2017 and dues towards defendant
as per ledger account maintained vide Exh.19. In short, he deposed
that amount is due towards defendant as mentioned in ledger account.
On perusal of crossexamination of PW 2, nothing is extracted on behalf
of defendant for doubting credibility of the witness. Admittedly, PW 2
has joined services of another company and he has no enimical terms
with defendant.
16. PW 3 Shekhar Gawle knows plaintiff and defendant. At the
material time, he was assigned with job to supervise the work in
question on behalf of plaintiff. In clear terms, PW 3 supported the
claim of plaintiff. In crossexamination PW 3 admits that he is not
aware about the contents mentioned in the agreement and
correspondence between plaintiff and defendant. However, being
supervisor of the project, nothing is extracted on behalf of defendant
that contractual work was remained incomplete or delayed on the part
of plaintiff. Accordingly, nothing fruitful came to be achieved on behalf
of defendant.
17. As discussed above, impugned agreement between plaintiff
and defendant dated 24/11/2017 vide Exh.14 is not disputed.
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According to plaintiff, in view of different invoices at Exh.15 to 17,
plaintiff has claimed the amount from defendant. As discussed above
and details given in the ledger account vide Exh.19, plaintiff has
accepted that plaintiff has received the payment of Rs.25,00,000/ from
the defendant.
18. DW 1 M. Sridhar Reddy, Managing Director deposed vide
Exh.12. He admits terms and conditions mentioned in impugned
agreement vide Exh.14. DW 1 came with the case that:
a) plaintiff has failed to carry out the assigned job,
b) plaintiff has failed to submit data in excel form,
c) plaintiff has failed to complete the work within 45 days ;
and
d) no notice was served to the defendant.
19. It is surprising to note that aforesaid points came to be
mentioned by the DW 1 for the first time in deposition, these are not
mentioned in written statement. Therefore, veracity of the witness
requires to check from the crossexamination of DW 1. It is admitted
that on the date of execution of the agreement plaintiff has started the
survey. However, defendant company is not aware that how long
survey has lasted ? In para 13 DW 1 has admitted the progress of work
and various invoices submitted by the plaintiff to the defendant. It is
also admitted that in view of various invoices, defendant had issued the
part payment to the plaintiff. For sake of convenience and ready
reference, para no.13 of the crossexamination of DW 1 is reproduced as
follows :
“13. It is correct to say that the plaintiff started
the survey on 24.11.2017 and submitted first TIPL
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bill no.1 on 29.11.2017 for Rs.3,04,558/. ( Witness
volunteers that the bill and the report were submitted
and accordingly, payments were made to the
plaintiff. ) The work was in progress from
24.11.2017 to 29.11.2017. The work was in progress
from 29.11.2017 to 11.12.2017. It is correct to say
that on 29.12.2017, defendant company paid an
amount of Rs.15,09,948/. It is correct to say that
from 11.12.2017 to 29.12.2017, the work was in
progress. It is not correct to say that the work which
was started on 24.11.2017 was completed by the
plaintiff within the stipulated time i.e. on
06.01.2018. It is correct to say that on 18.01.2018,
the defendant company paid Rs.2,25,000/ to the
plaintiff. It is correct to say that on 17.04.2018, the
defendant company paid Rs.5,00,000/ to the
plaintiff. It is not correct to say that an amount of
Rs.8,65,192/ is due and payable by defendant
company to plaintiff out of the total amount raised by
virtue of bills (Exh.15, 16 and 17). It is correct to say
that all these bills were directly forwarded to the
plaintiff by defendant company.”
20. DW 1 further admits that on 17/04/2018 last payment
came to be disbursed by the defendant to the plaintiff company.
However, in respect of various objections about noncompletion of
work, and time as essence of contract; there is no notice that came to be
issued by the defendant company. It is admitted in specific terms that
no notice was issued by the defendant about breach of agreement
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against the plaintiff. It is further admitted that there is no notice issued
by the defendant for cancellation of agreement.
21. The genesis of contractual relations between plaintiff and
defendant is agreement vide Exh.14 dated 24/11/2017. Admittedly,
plaintiff has forwarded all reports to the Wadia Company, however, it is
clarified by the plaintiff that copy of every report came to be forwarded
to the defendant company. It is important to note that there is no case
of defendant that contractual work as agreed in agreement vide Exh.14
is not completed by the plaintiff. Defendant cannot deny the payment
made to or benefit received by the defendant.
22. In para 15 of crossexamination, DW 1 submits that entire
payment has not been received to the defendant from the Wadia
Company. Defendant has failed to clarify basic agreement between the
Wadia Company and the defendant. There is no case of defendant that
there is no payment received to the defendant from Wadia Company,
therefore, it was not disbursed by the defendant to the plaintiff. The
alleged agreement between the Wadia Company and the defendant is a
genus and agreement vide Exh.14 is a species. Therefore, it was
incumbent on the part of the defendant to clarify the contractual terms
between the Wadia Company and the defendant.
23. Considering written statement submitted by the defendant
and testimony of DW 1, it is very well clear that subconsultancy
agreement was executed vide Exh.14 on 24/11/2017. On first page,
clause no.4 is clear in respect of payment of consideration to the
plaintiff for the job of subconsultant. The relevant provision is
reproduced as follows :
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“4. The Consultant hereby agrees to pay the
Subconsultant in consideration of the performance
of the Subconsultancy Services such amounts as
become payable under the provisions of the Sub
consultancy Agreement at the time and in the
manner prescribed by the Subconsultancy
Agreement.”
24. There is no notice issued by the defendant company to the
Wadia Company nor it is clarified that how much amount is yet not
received by the defendant company from the Wadia Company. It infers
that agreed consideration came to be received by the defendant from
the Wadia Company, but it was not disbursed by the defendant to the
plaintiff. It is necessary to note, there is no case of defendant that
plaintiff has failed to complete the work. On the other hand, plaintiff
has completed the work in first week of January 2018. Defendant
company has disbursed last installment on 17/04/2018. In short,
defendant cannot deny the payment claimed in view of invoices vide
Exh.15 to 17 and ledger account vide Exh.19. Hence Issue Nos.2 and
5 are replied in affirmative.
25. In view of aforesaid discussion, following are the important
points summarized for sake of brevity :
a)
b)
There is no notice issued by the defendant to the plaintiff
about noncompletion of work or about complains
regarding quality of the work.
Contractual work came to be completed by the plaintiff in
first week of January 2018 and defendant has paid last
installment on 17/04/2018.
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c)
d)
There is no clarification sought by the defendant from the
Wadia Company about completion of project or its
quality.
There is no suit preferred by the defendant against the
Wadia Company.
26. In view of ledger account maintained by the plaintiff vide
Exh.19, amount of Rs.8,65,192/ (Rupees Eight Lakhs Sixtyfive
Thousand One Hundred Ninetytwo Only) is due towards defendant.
Plaintiff has claimed to recover the same with prevailing rate of interest
from 17/04/2018. However, there is no court fees paid by the plaintiff
from 17/04/2018 till presentation of the suit. Hence, no relief of
interest can be granted for said period. Considering nature of
transaction between the parties, the interest at the rate of 9% p.a.
appears to be appropriate. Hence, the order :
ORDER
1. Suit is partly decreed with cost.
2. Defendant shall pay an amount of Rs.8,65,192/ (Rupees
Eight Lakhs Sixtyfive Thousand One Hundred Ninetytwo
Only) with interest @ 9% p.a. from the date of suit till
realization, within two months from the date of decree.
3. Decree shall be drawn accordingly.
(G.G.BHANSALI)
Judge, City Civil & Sessions Court,
Date : 27/01/2021. Mumbai.
1. Dictated on : 27 & 28/01/2021.
2. Transcribed on : 28 & 29/01/2021.
3. Signed on : 05/02/2021.
4. Delivered to Certified :
Copy Section on
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06/02/2021. 3.29 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 27/01/2021.
Judgment/Order signed by P.O. on 05/02/2021.
Judgment/Order uploaded on 06/02/2021.
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