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2017 DIGILAW 414 (DEL)

DEVI RAM HATHWALIA v. SAPTPARANI CGHS LTD.

2017-02-03

DEEPA SHARMA

body2017
JUDGMENT : 1. The case falls within the category of commercial suit and the same be re-numbered accordingly. 2. The case of the plaintiff is that he is carrying on the business of construction under the name and style of M/s Hathwalia Builders. The defendant (M/S SAPTPARANI CGHS LTD.) awarded a contract of construction of 87 dwelling units on plot No.4, Sector 19B, Dwarka, New Delhi-110075. It is further contended by the plaintiff that he completed the work assigned to him and submitted various bills for the payment. Final bill was submitted on 05.04.2011 for a sum of Rs.21,24,58,731/-. The Architect, however assessed the payable amount at Rs.20,98,29,996/- out of the total bill. The defendant had already paid a substantial amount and only a sum of Rs.99,66,127/- along with security deposit of Rs. 1 lakh is due. The architect in Completion certificate certified on 20.04.2011, that all the 87 dwelling units of defendant had been completed satisfactorily as per the terms of the tender. It is submitted that despite the several requests, money was not paid to the plaintiff. The plaintiff was given possession of three flat bearing nos. B-02, B-22 and A-53 as security against the due amount. 3. On these facts, it is prayed that a decree of Rs.1,33,34,371/- along with pendente lite and future interest @ 18 % per annum be passed. 4. Defendants were duly served of the suit. None on behalf of the defendants attended the court. The present defendant was duly served but did not appear before the court and was proceeded ex-parte on 14.09.2015. No written statement was filed. The plaintiff has examined himself and has filed his affidavit in evidence which is proved as Ex.PW1/X. The plaintiff has also proved on record the copy of the tender letter as Ex.PW1/1. Copy of the acceptance of the contract is proved as Ex.PW1/2 and the copy of the agreement is proved as Ex.PW1/3 and the final bill dated 05.04.2011 is Ex.PW1/4. The certified final bill of the Architect is Ex.PW1/6 and the completion certificate issued by the Architect is proved as Ex.Pw1/7. The notice sent to the defendant demanding the due amount is exhibited as Ex.PW1/8. Ex.PW1/9 is the reply of the defendant and the copy of the ledger account of defendant is Ex.PW1/10. Copy of the legal notice is Ex.PW1/11. 5. I have heard the arguments of learned counsel for the plaintiff. 6. The notice sent to the defendant demanding the due amount is exhibited as Ex.PW1/8. Ex.PW1/9 is the reply of the defendant and the copy of the ledger account of defendant is Ex.PW1/10. Copy of the legal notice is Ex.PW1/11. 5. I have heard the arguments of learned counsel for the plaintiff. 6. It is argued on behalf of the plaintiff that there was no arbitration clause in the agreement dated 25.02.2005 and in the reply dated 30.03.2012. The defendant had acknowledged their dues and handed over the possession of three flats of defaulting members namely Mr.Jagdish Tyagi, Mr.Vinay Kumar and Mr.Nikhil Aggarwal till the clearance of the dues vide Resolution passed in the General House Meeting of the defendant and the copy of the Minutes dated 25.03.2012. The copy of the Minutes dated 25.03.2012 was sent by the defendant to plaintiff attached with its reply Ex.PW1/9 which the defendant had written to the plaintiff in response to his notice Ex.PW1/8. 7. I have given thoughtful consideration to the arguments and the evidences on record. 8. The plaintiff has duly proved by proving relevant evidences on record all the facts contended in the plaint. The agreement dated 25.02.2005 clearly shows that there was a contract between the plaintiff and the defendant for the construction of 87 dwelling units and M/s Enar Consultant was appointed as an architect. Other documents on record clearly show that the architect had given a certificate of completion of work and had also determined the total outstanding amount. Out of that total determined amount, the defendant has admittedly paid to him a substantial amount and balance amount of Rs.99,66,127/- is still due. The Construction Agreement Ex.PW1/3 also shows that the plaintiff had deposited a sum of Rs.1 lakh towards earnest money for due performance of the agreement. Since the defendant vide their document Ex.PW1/9 have admitted the payable dues and also as a security gave possession of three flats to the plaintiff which he was to hold till the payment of the dues, I am satisfied that the plaintiff has proved his entitlement to a sum of Rs. Rs.99,66,127/-. Plaintiff has also prayed for pendente lite and future interest @ 18 % per annum. The plaintiff has failed to show that under the terms of the contract he was entitled to receive the interest @ 18%. Rs.99,66,127/-. Plaintiff has also prayed for pendente lite and future interest @ 18 % per annum. The plaintiff has failed to show that under the terms of the contract he was entitled to receive the interest @ 18%. In terms of Section 34 of the Code of Civil Procedure, the dispute being a commercial dispute the plaintiff is entitled to pendente lite and future interest @ 9% per annum. The present suit is decreed for a sum of Rs.1,00,66,127/- (one crore sixty six thousand one hundred twenty seven only) along with pendente lite and future simple interest at the rate of 9% per annum, till its realization. Decree sheet be prepared accordingly. No orders as to cost. 9. Plaintiff is also directed to release the security of three dwelling units which were handed over to him as part of the security on realization of the decretal amount.