JUDGMENT
Pradeep Nandrajog, J.
1. Though captioned as a suit for specific performance of contract, plaintiff prays for a decree in sum of Rs.32,27,102.56 (Rupees Thirty Two Lakhs, Twenty Seven Thousand One Hundred Two and Paise Fifty Six only), with further prayer that personal belongings, official papers tools etc. illegally with-held by the defendant be directed to be released.
2. As per plaint, defendant issued a Work Order dated 3.12.1992 to the plaintiff, duly accepted by the plaintiff. Plaintiff commenced the work as per said Work Order. By letter dated 7.5.1993 additional work was awarded on same terms as the Work Order. Plaintiff was to supply manpower and use his own tools and tackles for executing the work, being fabrication of pipes after cutting metal plates and welding them, earthwork channels, laying and fitting the pipes and completing finishing work for reinforcement (civil work). Plaintiff claims to have done work and raised bills in sum of Rs.56,75,340.05 for works as per work order dated 3.2.19092. it is stated that plaintiff received payment in sum of Rs.24,83,014.00. Sum of Rs.31,92,326.05 is stated to be outstanding. For additional works awarded vide letter dated 7.5.1993 it is pleaded that a sum of Rs.34,776.51 remains outstanding. In this manner, plaintiff states that it is entitled to a decree in sum of Rs.32,27,102.56.
3. It is stated that on 5.11.1993 entry of plaintiff and his labour was prohibited at site and all equipment of the plaintiff is lying at site.
4. It may be noted that no particulars of tools and tackles at site have been stated. No evidence has been led by plaintiff on this aspect, save and except, a reiteration of the bald statement that tools and tackles were at site when entry was prohibited. At the hearing held on 1.2.2005, Mr. Sandeep Sethi, learned Senior Counsel stated that plaintiff restricts prayer for recovery of money.
5. In the written statement, defendant, while admitting having awarded work to the plaintiff vide work order dated 3.12.1992 and additional work vide letter dated 7.5.1993 has pleaded that its consultant had verified bills of the plaintiff in sum of Rs.54.68 lacs, 5% of said amount amounting to Rs.2.73 lacs was retained as per retention clause of the Work Order (clause 25A). Out of balance amount of Rs.51.95 lacs, a sum of Rs.49.94 lacs was paid. Since some chargeable and consumable items other than electrodes were supplied by it to the plaintiff and payments were made to other contractors on behalf of the plaintiff, no amount was payable and on the contrary Rs.5.65 lacs was paid in excess. It is pleaded that there is a penalty clause in the agreement. It is also pleaded that plaintiff did not complete the works.
6. Vide order dated 16.1.2001, following issues were framed:-
“1. Whether a total sum of Rs.24,83,014/- only was paid by the defendant to the plaintiff against the first eleven running account bills totaling to an amount of Rs.56,75,340.05 raised by the plaintiff although the bills to the extent of nearly Rs.51 lakhs were accepted and passed by the PDIL and BACL (consultants and owners)? OPP
2. Whether the defendant did not raise any objection with respect of any one of the running account bills submitted by the plaintiff? OPP
3. Whether, in the circumstances, the defendant is liable to pay the alleged outstanding amount of Rs.31,92,326.05 with interest thereon against the said first eleven running account bills? If so, at what rate of interest? OPP
4. Whether the defendant has committed breach of its contractual obligation by not paying the alleged outstanding amount till date? OPP
5. Whether the defendant failed to provide the necessary erection material for underground piping job like pipes, fittings, flanges, etc at the proper time as per the terms of work order? If so, whether the plaintiff has consequently suffered idle labour charges and other consequential losses by the negligence of defendant to supply the material on time? OPP
6. Whether the defendant had wrongly deducted a sum of Rs.5.49 lakhs towards costs of materials/consumables supplied by the defendant to the plaintiff? OPP
7. Whether the plaintiff is entitled to refund of Rs.20,000/- deducted by the plaintiff towards hire charges for welding/grinding and other tools supplied by the BACL? OPP
8. Whether the failure of the defendant to clear the alleged outstanding dues to the plaintiff has caused serious damage to the plaintiff’s reputation in the commercial world? OPP
9. Whether the defendant has in gross violation of the terms of the contract failed to clear the bills raised by the plaintiff for the additional work done by the plaintiff? OPP
10. Whether the defendant failed to clear the alleged outstanding dues of the plaintiff? OPP
11. Whether the letter dated 5.11.1993 of the defendant directing the plaintiff to stop the work with immediate effect in case he was not agreeable to carry out the job at the old rates was aimed to pressurise the plaintiff to forgo its claim for payment of escalation cost? OPP
12. Whether the ultimatum dated 5.11.1993 given by the defendant to the plaintiff to stop work was aimed at avoiding payment of the legitimate dues of the plaintiff although the concerned work was completed up to almost 86% without any hitch or complaint whatsoever?
13. Whether the cheque No. 868769 dated 16.12.1993 for Rs.2,95,000/- issued by the defendant towards part payment of the total dues to the plaintiff was dishonoured by the Central Bank of India? OPP
14. Whether the action of the defendant directing the plaintiff to stop the work constitutes violation of the terms of the work order? OPP
15. Whether the seizure by the defendant of the official papers, bills, material tools, tackles, electrical goods and personal belonging of the plaintiff is wholly illegal, arbitrary and highhanded? OPP
16. Whether the letter dated 5.11.1993 of the defendant directing the plaintiff to complete the job at old rates or stop the work with immediate effect constitutes a violation of the escalation clause 28 of the work order dated 3.12.1992 which provides for payment of escalation cost? OPP
17. Whether the defendant has till date failed to issue even the certificate of payment of Income-tax (TDS) on the receipts of the amount paid? OPP
18. Whether the total amount due to the plaintiff is Rs.32,27,102.56 in addition to the interest thereon? OPP
19. Whether the present suit for specific performance filed by the plaintiff as an indigent person is maintainable in the eye of law? OPD
20. Whether the plaintiff is liable for penalty for non-performance/breach of the contract within the stipulated time frame as envisaged in the contract? OPD
21. Whether the plaintiff was paid Rs.49,94,788/- for the work performed by him and out of that Rs.7.66 lacs was still recoverable from the plaintiff by the defendants on account of chargeable material, consumable items issued, other than electrodes and the payment made to other contractor on behalf of plaintiff? OPD
22. Whether this Hon’ble Court has got jurisdiction to entertain present suit? OPD”
7. When asked at the hearing as to what was the necessity of framing so many issues and whether parties want a determination issue-wise, counsel for the parties agreed that in view of the evidence led, only 3 issues be decided by this Court, being:-
(a) To what amount is the plaintiff entitled to from the defendant?
(b) Whether the defendant was entitled to adjust the amounts indicated in the statement of account filed by the defendant; and
(c) If plaintiff is entitled to any amount, whether plaintiff is entitled to interest and if so at what rate?
8. I may only add that the issues seem to have been framed in view of the prolix pleadings of the plaintiff and consequent response thereto by the defendant. In the plaint, plaintiff has referred to settlement of his bills when contract was on and has made a grievance to certain deduction and probably this has led to the framing of multiple issues as noted above. I may note that issue of indigency of the plaintiff has already been gone into and vide order dated 16.9.1999 it was held that plaintiff is indigent and was allowed to sue as an indigent person.
9. Mr. Sandeep Sethi, learned senior counsel for the plaintiff stated that in view of the incohate evidence led by the parties, he was prepared to treat the billing figures for the purposes of bills payable as reflected in the statement of account filed by the defendant. Mr. Sandeep Sethi argued that since the statement of account filed by the defendant showed what was accepted by the defendant as the amount payable, amount reflected as payable in the statement of accounts being an admission of the defendant would bind it. Mr. Sandeep Sethi, further urged that notwithstanding the testimony of the plaintiff to the contrary, plaintiff admits receipt of sum of Rs.33,83,014/-. Counsel urged that deductions being unacceptable to the plaintiff, it was for the defendant to justify and prove the deductions.
10. Learned counsel for the defendant, Shri Uday Kumar, per contra urged that in the plaint the plaintiff has admitted receipt of Rs.43 lakhs. Counsel further urged that in the cross examination, plaintiff has admitted adjustments and debiting of the account of the plaintiff. Plaintiff is deemed to have admitted payment in sum of Rs.49,94,788/-.
11. Before dealing with the contentions of the parties, in light of the evidence, I would like to note a very disturbing feature which this Court is noticing in every second suit coming before this Court. Junior counsel are ignoring provisions of the Code of Civil Procedure in their pleadings. Improper choice of words in the pleadings is resulting in issues not being focused. After admission/denial, while leading evidence, parties are ignoring the admitted documents.
12. For example, in the instant case, plaintiff pleaded in the plaint that it received only a sum of Rs.24,83,011/-. The plaintiff himself filed various documents. These documents were admitted by the defendant. These documents are Ex.P-6 to P-29. Ex.P-6 to P-29 are the vouchers sent by the defendant to the plaintiff for signatures when payments were tendered. The total of the sum received has been reflected in Annexure `L’ to the replication filed by the plaintiff. Annexure`L’ to the replication filed by the plaintiff records:-
“Total payments( including mobilization advance) made by the defendant to the plaintiff: Rs.33,83,014.”
13. In spite thereof, in the affidavit filed by way of evidence, plaintiff stated that it had received only Rs.24,83,014/-. It is most unfortunate that counsel for the plaintiff as well as counsel for the defendant did not bring pleadings in the replication to the notice of the Court when issues were framed. It is most unfortunate that when affidavit by way of evidence was filed, counsel for the plaintiff merely reiterated what was stated in the plaint, ignoring Ex.P-6 to P-29, documents filed by the plaintiff himself as also ignoring the averments of the plaintiff in the replication and the statement of payments admitted to be received by the plaintiff in Annexure `L’ to the replication.
14. As would be noted from my discussion hereunder, even counsel for the defendant failed to comprehend as to what the defendant was required to prove. Counsel for the defendant argued as would be noted hereunder that it was for the plaintiff to prove his case. Unfortunately, counsel for the defendant seemed to be totally unaware of the concept of shifting of onus. In the instant case, to establish what was due to the plaintiff, plaintiff had to establish the quantity of work done and applying the contract rates, amount payable would have been established. After adjusting the amount which the plaintiff admitted as received, if defendant claimed that any further amount was paid, onus was on the defendant to prove payment thereof. This proof of payment had to be by primary evidence. It could be the receipts or vouchers signed by the plaintiff acknowledging payment, akin to Ex.P-9 to P-29 which show that the plaintiff received Rs.33,83,014/-. It could be through evidence of the banker to the effect that various amounts stated to be paid were debited to the account of the defendant and were remitted to the banker of the plaintiff. If payments were in cash and no receipts or vouchers were got signed, at least statement of the person who handed over cash should have been recorded. Blissfully unaware of the fact that entries in a statement of account maintained by a party required to be proved with the aid of primary evidence, counsel for the defendant merely got exhibited the typed sheet showing the account of the plaintiff maintained by the defendant, oblivious of the legal consequences. Counsel for the defendant was totally ignorant of Section 34 of the Evidence Act,1872. As held in , Ishwar Dass Jain Vs. Sohan Lal (para 23), sanctity is attached in the law of evidence to books of accounts if they are indeed ‘account books’ i.e. in original and if they show, on their face, that they are kept in the ‘regular course of business’. Such sanctity cannot attach to private extracts of alleged account books where the original accounts are not produced in Court. Bankers Book Evidence Act, 1891 or where Section 65(f) or (g) of the Evidence Act being the exception to this rule. It is hoped and expected that members of the bar would enrich themselves with legal knowledge and would justify the faith reposed in them by their clients. What this Court saw in the present suit pained the Court.
15. Typed statement of account of the plaintiff as filed by the defendant records as under:-
V.M.J ENTERPRISES
ACCOUT STATEMENT AS PER PARTY
Total bills raised by the party : Rs.56,75,340.05
Payment received : Rs.24,83,014.00
Rs.31,92,326.05
AS PER OUR RECORDS
Bills submitted Bills passed Deductions
Running Bills 51,40,830.00 45,62,657.00 5,78,173.00
Escalation 2,57,042.00 2,28,133.00 28,909.00
Escalation claimed 2,37,902.00 – 2,37,902.00
———— ———— ———–
56,35,774.00 47,90,790.00 8,44,984.00
------------ ------------ -----------
Amount payable
up to 10th R.A bill : Rs.47,90,790.00
PAYMENTS MADE BY US:
Mobilization advance : Rs. 2,00,000.00
Plus: Payment confirmed by party : Rs.24,83,024.00
Further payments made : Rs.23,11,191.00
Rs.49,94,215.00
Cost of material supplied by us i.e. steel, cement, diesel etc
Consumable Items other
than electrodes : Rs. 26,972.00
Rs. 4,26,199.00
Payments made to other parties
on behalf of VMJ : Rs. 87,885.00
Equipment hire charges : Rs. 2,24,633.00
Total Rs.57,59,904.00
II
Further bills Bills passed Deductions
Running bills after
10th R.A 7,43,938.00 6,45,550.00 98,388.00
Escalation 37,171.00 32,291.00 4,880.00
7,81,109.00 6,77,841.00 1,03,268.00
I + II
56,35,774.00 47,90,790.00 8,44,984.00
7,81,109.00 6,77,841.00 1,03,268.00
64,16,883.00 54,68,631.00 9,48,252.00
Less: Retention as per work order- 5% 2,73,432.00
Total amount payable to party 51,95,199.00
Total payment made plus cost of material issued 57,59,904.00
Amount recoverable 5,64,705.00
As noted above, Mr. Sandeep Sethi, restricted claim of the plaintiff to the amounts certified as bills passed.
16. In respect of the Work Order dated 3.12.1992, defendant’s statement shows Rs.47,90,790/- as the amount payable. For the amounts payable as per works awarded on 7.5.1993, defendants statement shows Rs.6,77,841/- as the payable amount. Total amount payable has been shown as Rs.54,68,631/-.
17. As per the statement aforesaid, defendant has shown that it has paid Rs.49,94,215/- to the plaintiff. A sum of Rs.26,972/- has been deducted towards cost of material supplied i.e. steel, cement and diesel. A sum of Rs.4,26,199/- has been deducted towards supply items other than electrodes. A sum of Rs. 87,855/- has been deducted towards payment made to other parties on behalf of the plaintiff and a sum of Rs.2,24,633/- has been deducted towards equipment hire charges. As per said statement, defendant has accordingly given credit in sum of Rs.57,59,904/- to the plaintiff. Plaintiff has further deducted a sum of Rs.2,73,432/- towards retention, being 5% of Rs.54,68,631/-. In this manner, statement shows excess payment of Rs.5,64,705/- to the plaintiff.
18. To simplify for purpose of understanding, the statement relied upon by the defendant would be as under :
i) Amount certified for payment : Rs.54,68,631.00
ii) Less 5% retention as per work
order : Rs. 2,73,432.00
A. Amount Payable : Rs.51,95,199.00
Payments :
i) Mobilization advance : Rs. 2,00,000.00
ii) Payment confirmed by party : Rs.24,83,024.00
iii) Further payment made : Rs.23,11,191.00
B. Total payment made (i+ii+iii) : Rs.49,94,215.00
Further Deductions
i) Cost of material supplied i.e.
steel, cement, diesel etc. : Rs. 26,972.00
ii) Consumable items other than
electrodes : Rs. 4,26,199.00
iii) Payment made to other
parties on behalf of VMJ : Rs. 87,885.00
iv) Equipment hire charges : Rs. 2,24,689.00
C. Total Deductions (i+ii+iii+iv) : Rs. 7,65,689.00
D. Amount to be adjusted (B+C) : Rs.57,59,904.00
E. Excess paid (D-A) : Rs. 5,64,705.00
17. Work order being the contract between the parties (Ex.P-1), records that estimate value of work is Rs.71.91 lacs, may vary + or – 25%. Rs.2,00,000/- was to be paid as mobilization advance. This was recoverable from the running bills up to 5% of the value of the bill.
18. Electricity and water was to be provided by the defendant free of cost. Items to be supplied free of cost by the defendant to the plaintiff are :
i) Electrodes.
ii) Plates for fabricating pipes.
iii) Prefabricated pipes of NB 14″ and above.
iv) Pipes and fittings up to 13″ NB.
v) Flanges.
vi) Bolts, nuts, gaskets, half couplings, flat and columns.
vii) Valves.
viii) Cement and reinforcement steel for civil works.
19. As per work order, vide clause 25, 95% of the payment under each bill was payable after adjusting mobilization advance, being up to 5% of the bill amount. 5% was payable at 2 stages:
i) 2 1/2% within 90 days of completion of work.
ii) 2 1/2% on completion of furnishing bank guarantee towards performance guarantee (Probably warrantee)
20. Clause 25 reads as under :
“25. PAYMENT TERM S :
A. RUNNING ON ACCOUNT PAYMENTS : 95% against the value of the actual work done shall be paid against the running bills certified by owner/CONSULTANT AFTER RECOVERY of the following payments :-
i) Mobilization advance on pro-rata basis.
ii) Income tax as applicable.
The above 95% can be sub-divided as follows :-
a) for fabrication of pipes and fittings etc. (Section-I) 85% after fabrication including welding 10% after hydrotesting.
b) Fabrication, erection and coating/wrapping of piping Section III, IV & V-A) 85% on erection/coating as the case may be. This payment shall be made on line basis. 10% after testing.
c) Fabrication of fittings not covered above (Section V-B) 85% after fabrication including welding. 10% after hydrotesting.
d) Radiography (Section V-C) 95% after acceptance of radiography.
e) Civil works (Section VI) 95% after completion of each activity.
75% amounts against fortnightly ‘On Account Bills’ after recoveries shall be paid within seven days and balance within 21 days from the date of submission of bills.
B. FINAL PAYMNET :
2 1/2% shall be released (within 90 days of completion certificate) after all the jobs have been completed and following requirements have been met :
i) Completion certificate has been issued to contractor.
ii) Materials have been reconciled, site has been cleared and temporary installations (made by contractor from this use for the execution of this contract) removed.
iii) No claims certificate by the contractor. No further claims shall be made by the contractor after submission of the final bill.
iv) A certificate from the labour and welfare officer stating that they had cleared the payment for their workmen.
The remaining 2 1/2% (two and a half per cent) will be retained by owner which will constitute total performance guarantee. However, this 2 1/2% retention money can be released by owner provided the contractor submits a Bank Guarantee of equivalent amount from a scheduled commercial bank valid for a period of 24 months from date of issue of completion certificate or 12 months from the date of commissioning whichever is earlier.
C. CONTRACtor shall submit bills and record of measurement in 6 (six) copies on approved proforma of the owner/ CONSULTANT for work executed by him in each fortnight in consultant for his checking, approval and certification and for onward transmission to owner for effecting the payments.”
21. Clause 27 of the contract contains provisions for liquidated damages. It reads :
27. AGREED LIQUIDATED DAMAGES :
In case of delay in completion of work, owner shall deduct agreed liquidated damages at the rate of 1% (one per cent) of contract price for each week of delay or part thereof subject to a maximum of 5% (five per cent) of contract price. It is expressly agreed that the deduction aforesaid shall be by way of agreed liquidated damages and not as penalty.
22. Ex.DW-1A is a typed copy detailing payments alleged to be made by the defendant to the plaintiff. It has 31 entries totaling Rs.49,94,788/-. Unfortunately, in the present case neither has the plaintiff challenged the disputed entries when the witness of the defendant stated that defendant made payments as per Ex.DW-1A, nor has witness of the defendant produced the original account books. Unfortunately he did not even state that the accounts of the defendant were stored in a computer and Ex.DW-1A was a computer generated print. To compound the problem, witness did not even say that he had prepared the accounts and had entered the entires based on receipts or vouchers. A document has got exhibited without being proved. I only fee sorry for the clients. Counsel have displayed a pathetic knowledge of law of evidence.
23. I tried to reconcile Ex.DW-1A with Annexure ‘L’ (Colly.) filed by the plaintiff which acknowledges payment received in sum of Rs.33,83,014/-. Entries at serial No. 1 to 17 and 19 to 25 of Ex.DW-1A stand reconciled. It was thus for the defendant to have proved other payments stated to be made.
24. Learned counsel for the defendant urged that plaintiff has admitted receipt in sum of Rs.43 lacs in the plaint. Counsel referred to following averments in para 6 of the plaint :
“Vide letter dated 19.5.1993 annexed as Annexure ‘D’ the plaintiff informed the defendant that out of the total contract price of Rs.70.91 lacs running on account Bill Rs.43 lacs was raised and submitted to the office of the defendant. The aforesaid bill for Rs.43 lacs was duly settled by the defendant after deducting a sum of Rs.5.49 lacs towards cost of materials/consumable supplied by the defendant to the plaintiff whereas as per the contract, the defendant is to bore the cost of such material as per the terms of the work order stated herein above. Thus, the defendant must refund the plaintiff the deducted sum of Rs.5.49 lacs towards the cost of material which has been unjustly and/or earnestly recovered from the plaintiff.”
25. This is the lose pleading I have lamented in the earlier part of my judgment. Plaintiff has pleaded that bill for Rs.43 lacs was duly settled. I do not just understand as to why plaintiff could not simply say that he did not receive the full amount as is his case pleaded if one reads the entire plaint. Further, letter dated 19.5.1993, referred to in the pleading and annexed as Annexure D to the plaint reads as under:-
V.M.J. ENTERPRISES
H.O. FK-22, Shastri Nagar, New Delhi-110052.
Ref. No. MJ/SPN/CM/002-93 Dated: 19th May, 93. To The Hon. Chairman, M/s. B.A.C.L. Ltd., Antariksha Bhawan, 7th Floor, 22 Kasturba Gandhi Marg, New Delhi. Ref: W/O. No. BACL/FERT/ND/92-9482 dt. 3.12.92. Sub: Underground Piping Ammonia/Urea/Offsite. Dear Sir, Respectfully I beg to state the following facts for your kind consideration and favorable orders please:-
1) Your goodself was kind enough to award us the job of underground piping of Ammonia/Urea/Off site for Rs.70.71 lacs out of which bill for Rs.43.00 lacs has been raised and submitted to your office. While settling the bills, a sum of Rs.5.49 lacs has been recovered from us towards cost of materials/consumables plus Rs.1.43 lacs against Mob. advance plus Rs.60000/- as hire charges of machines (welding/grinding/gas cutter machines for 3 months only.
2) Balance job is amounting to Rs.28.00 lacs out of which job valuing to Rs.8.00 lacs is under work in progress.
3) As you are aware, we are a very small company and without your kind support we cannot survive, Sir, Every now and then we have to purchase materials/consumables in small quantity only because we don’t have fund. The market price of materials/consumables have gone very high such as bitumen was available earlier @ Rs. 5.25 kg. Now it has gone to Rs.8.50 p.Kg. Tissue paper was @ Rs.20.00 p.sq.mtr. now it is @ Rs.27.00 p.sq.M. Electrode Esab 6010 was Rs.5.87 per piece now it is @ Rs.6.90 p.piece, etc.
4) Your Honour while awarding the job at site gave us assurance that hire charges for welding/grinding and other tools supplied by M/s. BACL will be nominal whereas Rs.20,000/- per month has been recovered from us which a small company like us cannot bear.
5) Advance paid for purchase of material amounting to Rs.5.49 lacs has been fully utilised and adjusted from our bills.
6) Your Honour was kind enough to award us the job of BHEL (Piping job), but at the same old rate while consumable rates have been increased considerably.
In view of above, we request your honour to kindly pay us an advance of Rs.4.00 lacs to procure the required consumable/materials and kindly also rates including the reconsider the hire charges so that job can be completed in time and a company like us which is completely on your mercy, can survive.
With kind regards,
Yours faithfully,
sd/- M.N. Mishra, Prop.”
26. Be that as it may, settling a bill and paying as per settled bill are two distinct things. One settles a bill, meaning thereby that there is a dispute on the mode, manner, quantity or amount reflected in a bill. It may well be that the person receiving the bill has a problem on the quality of material supplied or work done and wants to reduce the bill amount. Settling a bill would mean certifying it for payment. Bill was settled would not mean that it was paid. Letter dated 19.5.1993, noted above clarifies what the plaintiff meant..
27. Plaintiff was cross-examined on the issue of what amount was paid to it. Cross-examination by the defendant is limited as under :
Question : Till 1993 how much has been paid by the defendant.
Answer : Around 22 lacs up to May,1993.
Question : Balance Sheet of defendant reflects that Rs.43,94,788/- was paid to the plaintiff.
Answer : NO.
Suggestion :
1. I put to you that defendant had paid to you Rs.23,33,024/- till May,1993. Is it correct? = Yes. 2. I put to you that subsequently defendant had paid Rs.49,94,215/-. Is it correct? = No, it is not correct.
29. It is accordingly held that the defendant has failed to prove that it has paid Rs.49,94,215/- to the plaintiff. However, since counsel for the plaintiff admitted that in view of averments made in the replication filed by the plaintiff and Annexure ‘L’ (Colly.) annexed thereto, plaintiff has admitted receipt in sum of Rs.33,83,014/-. This includes the mobilization advance.
30. On the issue of deduction? Defendant was not to effect any deductions for supply items as per contract. As per contract, supply items were listed. It was for the defendant to prove that it supplied items other than the ones required to be supplied free of cost.
31. Learned counsel for the defendant referred to Ex.DW-1/B, being a statement of the defendant detailing chargeable material issued to the plaintiff.
32. It reads as under :
DETAILS OF CHARGEABLE MATERISAL ISSUED TO VMJ
S. No. DESCRIPTION NO. QTY RATE AMOUNT
1. Lift Pulling machine 1 set 15000 15,000
2. Changeover Switch 1 No. 968 968
3. 12″ Wide wire brush 1 No. 25 25
4. TDS-(Sl.Nos.1, 2 & 3) 320
5. Sweep Cement 5 bags 55 275
6. turn steel (cut pieces) 0.740 MT 6600 PMT 4884
7. Cement 50 bags 110 P.Bag 5500
33. In cross-examination, plaintiff stated :
Question : Is it correct that chargeable material Ex.DW-1/B was issued to the plaintiff.
Answer : The articles mentioned were given.
34. As per contract, refer para 18 above, cement and steel was supply item to be supplied free of cost by the defendant to the plaintiff. Defendant cannot adjust amounts towards last 3 items in Ex.DW-1/B, being cement and steel. Defendant would thus be entitled to adjustment of Rs.16,313/- being price of items at serial No. 1 to 4 of DW-1/B.
35. Ex.DW-1/C and Ex.DW-1/D are statements of the defendant towards alleged payments made on behalf of the plaintiff to third parties and equipment hire charges respectively.
36. Defendant has led no evidence as to what equipment was hired by the plaintiff and hire charges were paid by the defendant. No evidence has been led that defendant hired out any equipment to the plaintiff. No evidence has been led that defendant paid any amount to any third party on behalf of the plaintiff. In the affidavit by way of evidence, defendant has deposed :
“2. I say that the defendant in consultation with Consultant Project and Development India Ltd. have verified the bills amounting to Rs.54.68 lacs. I say that out of which 5% amount was retained as per the retention clause of the contract, i.e. 25A amounting to Rs.2.73 lacs. I say that out of the balance amount of Rs.51.95 lacs a sum of Rs.49.94 lacs were paid by the defendant to the plaintiff. However, an amount of Rs.7.66 lacs was still recoverable by the defendant from the plaintiff on account of chargeable material issued, consumable items other than electrodes payment made to other contractors on behalf of V.M.J. Enterprises.
3. I further say that as such after giving the plaintiff due credit for the balance amount due from the defendant, the net amount payable to the defendant by the plaintiff is Rs.5.65 lacs.
4. I further say that the aforesaid facts are very clear as reflected in the sub-ledger account of the defendant company which annexed with the written statement as Annexure D/1(Colly.)”
37. Ex.DW-1/C and Ex.DW-1/D are part of Annexure ‘D-1’ (Colly.). The two have remained unproved.
38. Another pathetic state of affairs be recorded. The two statements Ex.DW-1/C and Ex.DW-1/D got exhibit marks when plaintiff was cross-examined. The relevant part of cross-examination is as under :
Question : Ex.DW-1/C show details of payment made to other contractors on behalf of the plaintiff. Is this correct?
Answer : It is not correct.
Question : Ex.DW-1/D shows details of equipment hire charges deducted by the defendant without informing the plaintiff. Is it correct?
Answer : Yes.
39. I just do not comprehend as to how the learned Local Commissioner who recorded the evidence exhibited the documents. They should have remained marked documents. I am equally surprised at the second question. Defendant itself is suggesting that Ex.DW-1/D shows details of equipment hire charges deducted by it without informing the plaintiff. I leave it at that.
40. Defendant has relied upon Clause 25A of the contract to justify retention of Rs.2.73 lacs. Clause 25(A) and (B) have been noted in para 20 above. This amount had to be paid back in two installments. Neither party has led evidence on issue of contract being completed or not. I accordingly hold that even this amount would be payable in view of the fact that plaintiff has stated and deposed that he was prevented from entering upon site after 5.11.1993.
41. Reframed issues ‘a’ and ‘b’ as per para 7 above are accordingly answered by holding that plaintiff would be entitled to a sum of Rs.54,68,631/- as per bills admitted as payable by the defendant. Plaintiff has admitted receipt of payment in sum of Rs.33,83,014/-. Defendant would be entitled to adjustment of Rs.16,313/-. I accordingly hold that plaintiff would be entitled to a sum of Rs.20,69,304/- from the defendant. Suit is decreed in the sum of Rs.20,69,304/- in favor of the plaintiff and against the defendant.
42. Since neither plaintiff nor defendant made any attempt to reconcile their account and plaintiff is getting a decree by default due to incompetent lawyers handling of the case of the defendant, I award no interest to the plaintiff, pre-suit or pendente lite. However, post decree interest is awarded @ 6% p.a. from the date of decree till the date of realization.
43. I decline costs to the plaintiff. Both parties to bear their own costs.