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Otis Elevators Company India Limited v/s Skipper Tower Private Limited

    Suit Appeal No. 2068 of 1986
    Decided On, 09 March 1998
    At, High Court of Delhi
    By, THE HONOURABLE MR. JUSTICE C.M. NAYAR
    For the Appearing Parties: Atul Kumar, Advocate.


Judgment Text
C. M. NAYAR, J.


(1) PLAINTIFF has filed the present suit against the defendant for recovery of Rs. 4,13,168. 05 with costs and pendente lite and future interest.


(2) PLAINTIFF is a company incorporated under the Companies Act, 1956 and has its registered Office at Gateway Building, Apolo Bunder, Bombay-400039 and its regional office for Northern India at 11th Floor, Himalaya House, 23, Kasturba Gandhi Marg, New Delhi-110001. Shri A. S. Herwadkar is the Regional Manager of the plaintiff company who is conversant with the facts of the case and is duly authorised and competent to sign and verify the plaint and to institute the present suit. He also holds a Power of Attorney on behalf of the plaintiff in this regard.


(3) PLAINTIFF carries on the business of manufacture, installation and maintenance of elevators and other such materials and devices. The defendant is a registered private limited company within the meaning of Companies Act, 1956 and has its registered office at Skipper Towers, 22, Barakhamba Road, New Delhi-110001. and carries on the business of construction of multi-storeyed and other buildings.


(4) IT is alleged that the defendant negotiated with the plaintiff for the installation of six electric elevators for their building at Hemkunt Tower, 98, Nehru Place, New Delhi. and in pursuance thereto an agreement was entered into between the plaintiff and the defendant for supply of the said six electric traction elevators, vide proposal dated March 20, 1978 made by the plaintiff to the defendant which was duly accepted by the defendant on 26th June, 1978. The price agreed for the said six elevators was Rs. 2,85,580. 00 per elevators totalling to Rs. 17,13,480. 00 exclusive of excise duty and sales tax, if any, payable. The defendant, however, requested for further reduction in the contract price for the said elevators and the contract with regard to the price was modified to that extent and the price was reduced to Rs. 2,65,365. 00 per elevator totalling to Rs. 15,92,070. 00 vide proposal for change in contract dated June 27, 1978 made by the plaintiff and duly accepted by the defendant and a duly concluded contract bearg No. 52ne4305/10 was entered between the parties.


(5) IT is further alleged that in pursuance of the said order the plaintiff undertook the work of making ready the necessary equipment for the installation of the elevators and the said elevators were duly installed in the building of the defendant at Hemkunt Tower, Nehru Place, New Delhi. The defendant delayed the various payments to be made in terms of the contract and from the very inception persistently defaulted in the payment of the contractual amount. The plaintiff initially sent letter dated August 26, 1978 to the defendant stating that as per the terms of the contract 5 per cent of the contract value had become payable and out of the said amount of Rs. 79,603. 00 only Rs. 10,000. 00 has been paid. Thereafter also number of reminders were sent by the plaintiff. The amounts due from the defendant to the plaintiff continued to increase during this period.


(6) THE defendant sent cheque dated July 30, 1979 for Rs. 1,25,000. 00 drawn on Laxmi Commercial Bank Ltd. , Connaught Circus, New Delhi through their sister concern M/s Skipper Construction Co. Ltd. and the same was dishonoured by the bank. This fact was duly brought to the notice of the defendant vide registered AD letter dated February 25, 1980 sent by the plaintiff to the defendant and again a request was made for payment of the balance outstanding from the defendant to the plaintiff as on that date. The defendant, thereafter sent a demand draft for Rs. 58,414. 00 with their letter dated March 10, 1980 and requested for a further period of one week to make the balance payment of Rs. 1,00,000. 00 due and outstanding. The defendant thereafter sent balance amount of Rs. 1 lakh by Demand Drafts. Further facts are enumerated in paras 9 to 17 which are reproduced as under:


" In terms of the contract of six elevators were having Duplex Collective with/without attendant operation. The defendant requested that the operation of the two of the elevators should be changed to Simplex Collective with/without attendant operation and this was duly acknowledged and done by the plaintiff as per their letter dated 28th April, 1980. The plaintiff requested for the signing of the relevant change in contract by the defendant by the said letter and the said change was duly accepted by the defendant on 30. 5. 80. The defendant thereafter made certain delayed payments towards the balance amount of the contract price. 10. That the plaintiff sent their invoice dated 9. 9. 80 for Rs. 2,21,483. 00 with their letter dated September 29, 1980, towards the cost of material which was ready for despatch and requested for the payment for the same but the same was not made. A reminder by registered AD letter dated October 20, 1980 was also sent by the plaintiff to the defendant and thereafter telegrams were also sent requesting for the said payment. The plaintiff, further, sent invoice dated 15. 10. 80 for Rs. 92,871. 00 with their letter dated October 23, 1980 and again requested for the payment of the said amount. The defendant made certain delayed payments by demand draft for Rs. 92,871. 00 sent vide their letter dated 8th December, 1980. 11. The plaintiff brought to the notice of the defendant vide their letter dated 17. 12. 80 the fact that since as per the terms of the contract dated 20. 3. 78, the contract price was to remain firm for 98 weeks only, plaintiff was entitled to increase in price as per adjustment clause of the contract dated 20. 3. 78 and enclosed a price adjustment claim for Rs. 7,780. 00. 12. The plaintiff sent their invoice dated 20. 2. 81 for Rs. 4,64,354. 00 vide letter dated 10. 3. 81 towards the cost of balance material and also invoice for Rs. 84,910. 00 towards the central excise duty which had become payable by the plaintiff to the Government on behalf of the defendant and requested for the payment of the same. Since the payments were not made the plaintiff sent various reminders to the defendant. 13. The plaintiff brought to the notice of the defendant vide their registered AD letter dated 25. 4. 81 the fact that the payments against various invoices were due and outstanding from the defendant to the plaintiff and the same totalled to Rs. 7,51,988. 48 as on that day, as apart from the two price adjustment claims totalling to Rs. 19,938. 00. Since the payment was not coming forth telegram was sent to the defendant by the plaintiff. The defendant made part payment of Rs. 2 lakhs vide two cheques enclosed with their letter dated 3. 9. 81 and clearly stated that the balance outstanding would be liquidated at the end of September, 1981. 14. The plaintiff sent two invoices dated 9th July, 1981 for Rs. 26,535. 00 and Rs. 4633. 00 with their letter dated September 15, 1981 to the defendant and requested for payment. Further two invoices dated 16. 9. 81 for Rs. 26,535. 00 and Rs. 6310. 00 were sent by the plaintiff with their letter dated 19. 9. 81 to the defendant. However, the plaintiff received only a cheque for Rs. 26,535. 00 enclosed with defendant's letter dated 21. 9. 81. The plaintiff thus, wrote a letter dated 25. 9. 81 bringing to the notice of the defendant the fact that despite assurance to liquidate the balance contract price by end of September, 1981 the same had not been done. Various reminders were also sent in this behalf. 15. The plaintiff sent two invoices dated 29. 10. 81 for Rs. 26,535. 00 and dated 20. 10. 81 for Rs. 8242. 00 vide their letter dated 23rd November, 1981. The plaintiff also sent further two invoices for Rs. 53,069. 00 dated 25. 11. 81 and Rs. 17,513. 00 vide their letter dated 3. 12. 81. Further 3 invoices dated 30. 11. 81 for Rs. 26,533. 00 and Rs. 1,199. 01 and Rs. 8,756. 00 were sent by the plaintiff to the defendant vide their letter dated 18. 12. 81. 16. The plaintiff wrote a letter dated 23. 12. 81 to the defendant bringing to the notice of the defendant that the cheque dated 25. 11. 81 for Rs. 1,50,000. 00 had bounced. The defendant thereafter vide their letter dated 29. 12. 81 requested the plaintiff to send the cheque for Rs. 1,50,000. 00 issued by the defendant and stated that they would make payment by Demand Draft later on. However, no payments were made thereafter, and the plaintiff sent various telegrams to the defendant requesting for payment. 17. That the defendant made payment of Rs. 50,000. 00 vide pay order dated 17. 6. 82 enclosed with their letter dated 17. 6. 82 and thereafter further payment of Rs. 50,000. 00 was made by pay order dated 22. 6. 82 enclosed with their letter dated 22. 6. 82.


(7) IT is next alleged that the plaintiff sent various telegrams for payment of the balance amount outstanding and due to the plaintiff from the defendant amounting to Rs. 3,15,509. 49. The plaintiff sent their statement of account vide their registered AD letter dated September 10, 1982 which showed the balance of Rs. 3,15,509. 49 as due and outstanding from the defendant to the plaintiff.


(8) THE plaintiff sent a registered AD notice dated 26. 12. 1985 through their advocate asking the defendant to make payment of the sum of Rs. 1,90,509. 49 being principle amount due as on that date alongwith interest amounting to Rs. 2,39,039. 64 calculated at the rate of 18 per cent per annum totalling to Rs. 4,29,549. 13 which was duly served on the defendant. The defendant did not reply to the said notice. The defendant paid Rs. 25,000. 00 in the month of January, 1986 and Rs. 20,000. 00 in the month of March, 1986. It is submitted that a sum of Rs. 4,13,168. 05 alongwith interest at the rate of 18 per cent per annum till 15. 8. 86 amounting to Rs. 2,67,663. 56 is due and owing from the defendant to the plaintiff as per the statement of account annexed to the plaint and marked as Ex. PW2/95.


(9) SUMMONS in the suit were issued and they were duly served. Vide Order dated February 13, 1998 the defendant was directed to be proceeded against ex parte. The defendant filed the written statement in which the averments made in the plaint were controverted. The plaintiff filed replication in which they reiterated the averments as made in the plaint. Evidence by way of affidavit has been filed on behalf of the plaintiff.


(10) ON the pleadings of the parties the following issues were framed on August 29, 1988 :-


1. Whether the suit has been instituted and plaint signed and verified by a duly authorised person ? 2. Whether the suit is within time ? (O. P. D.) 3. Whether the plaintiff is entitled to any interest, if so at what rate ? 4. Whether the plaintiff is entitled to recover any exciseable duty from the defendant ? (O. P. D.) 5. Whether the price for supply and installation of the Lifts was to be fixed after the installation ? 6. Relief.

Issue No. 1 :


(11) THE suit has been filed by Shri A. S. Herwadkar, Regional Manager of the plaintiff company. To prove this issue the statement of Shri A. S. Herwadkar, Regional Manager has been recorded on October 13, 1993 in which he has stated that the suit has been signed, verified and filed by him on behalf of the plaintiff company. He has also stated that in terms of the power of attorney he is a duly authorised officer to file, sign and verify the plaint. The certified copy of the Power of Attorney is placed on record which is Exhibit Public Witness 1/1. In his statement he has proved the resolutions dated January 30, 1979 and October 28, 1983 passed by the Board of Directors in this regard. The certified true copies are filed and exhibited as Public Witness 1/2 AND Public Witness 1/3 respectively. There is no evidence to rebut the same. It is, accordingly, held that the suit has been instituted and plaint is signed and verified by a duly authorised person. This issue is, accordingly, decided in favour of the plaintiff and against the defendant. Issue Nos. 2,3,4,5 and 6


(12) THE plaintiff has placed documents on record and filed evidence by way of affidavits. The plaintiff sent to the defendant a proposal for two electric traction elevators vide letters dated March 20, 1978 which is signed by Mr. K. K. Dhar on its behalf. The same is marked as Exhibit Public Witness 2/2. Exhibit P-1 is the contract entered into between the plaintiff and the defendant for supply and installation of two electric traction elevators in the building of the defendant. The contract was thereafter sent to the defendant vide letter dated August 26, 1978, Exhibit Public Witness 2/3. Exhibit Public Witness 2/4 is the office copy of letter dated August 17, 1978. Exhibit Public Witness 2/5 is the copy of letter dated December 4, 1978 signed by Shri A. K. Shirazi on behalf of the plaintiff company by which Invoice No. SAD0021x dated November 30, 1978 forrs. 79,604. 00 towards payment was sent. Exhibits Public Witness 2/6 and Public Witness 2/7 are copies of the letters dated January 2, 1979 and February 15, 1979 respectively.


(13) THE defendant vide letter dated June 27, 1978 accepted and signed the change in contract and the same is Exhibit P-2. The letter dated June 23, 1979 requesting the defendant to expedite the payment of the amount payable as advance is Exhibit PW2/8. The defendant sent a cheque Exhibit P-3 dated July 30, 1979 for Rs. 1,25,000. 00 which was dishonoured and the dishonour memo is Exhibit PW2/9. The defendant had to carry out certain preparatory work in the building to enable the plaintiff to install the Elevators and the defendant failed and neglected the same. Exhibit PW2/11 is the copy of the letter dated January 19, 1980 by which the plaintiff informed the defendant about the pending item of works which were still to be carried out by the defendant. Exhibit PW2/12 is the copy of the letter sent to the defendant with two copies of the drawings of the Elevators for his approval. The defendant vide letter dated March 10,1980 (Exhibit P-4) sent a Demand Draft for Rs. 58,414. 00 requesting therein to make the balance payment of Rs. 1,00,000. 00 du

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e and outstanding. The letter dated March 14, 1980 regarding acknowledging the receipt of Rs. 58,414. 00 is Exhibit PW2/14. The defendant thereafter vide letter dated March 26, 1980 Exhibit P-5 sent an amount of Rs. one lakh by means of two Demand Drafts. The other relevant documents as referred to in the plaint are Exhibits P-6 to P-17 and Exhibits PW2/15 to PW2/92. The statement of Account has been filed by the plaintiff as Exhibit PW2/95 showing the total balance due from the defendant. Exhibit PW2/93 is the copy of the notice dated December 26, 1985 sent by the plaintiff through their Advocate to the defendant and the same was served through acknowledgment card Exhibit PW2/94. (14) I have heard learned counsel for the plaintiff and also perused the documents on record. The defendants have neither appeared nor put forward their defence to repudiate the claim of the plaintiff. The perusal of the documents placed on record as well as the evidence produced by the plaintiff leave no manner of doubt that the defendant is liable to pay the amount as claimed in the suit. The plaintiff has proved the claim and the same is supported by evidence which has been filed by affidavit and the documents on record and the suit is, therefore, liable to succeed. (15) ACCORDINGLY, I pass a decree in the sum of Rs. 4,13,168. 05 in favour of the plaintiff and against the defendant with costs. The plaintiff shall also be entitled to pendente lite and future interest at the rate of 12 per cent per annum from the date of institution of suit till realisation.
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