Marwar Hotels Pvt. Ltd. v. Surya Enterprises

1. Exemption allowed subject to just exceptions. C.M. stands disposed of. RFA No. 879/2018 and C.M. No. 44911/2018(stay)

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit 2018:DHC:7306 impugning the Judgment of the trial court dated 30.01.2018 by which the trial court has decreed the suit for recovery of moneys filed by the respondent/plaintiff for the work of water-proofing treatment done for the appellant/defendant at the hotel site of the appellant/defendant at Jodhpur in Rajasthan. The suit has been decreed for a sum of Rs. 11,31,531.98/- alongwith interest @ 12% per annum. 3(i) The facts of the case are that the respondent/plaintiff had filed the subject suit pleading that the appellant/defendant had placed four purchase orders of the value of Rs. 20,26,194/- upon the respondent/plaintiff, and details of which are as under:

┌────────────────────────────────────────────────────────────────────────────────────────────────┐
│ Sl. No. Date          Contract(s)/Purchase     Subject         Amount                          │
│                       Order No.                Matter          Rs.                             │
├────────────────────────────────────────────────────────────────────────────────────────────────┤
│ 1.      27.9.99       MHL/PROJ/J/0139          Work      for 9,03,000                          │
│                                                water   tanks                                   │
│                                                and swimming                                    │
│                                                pool.                                           │
│                                                Additional                                      │
│                                                work as per                                     │
│                                                verbal order 21,594.00                          │
│ 2.      15.5.2000     MHL/PROJ/J/0218          For the work 6,05,600                           │
│                                                of      filling                                 │
│                                                expansion                                       │
│                                                joints    with                                  │
│                                                Polysulphide                                    │
│ 3.      26.7.2000     MHL/PROJ/J/0335          Water           2,66,000                        │
│ RFA No. 879/2018                                             Page 2 of 10                      │
│                                                                                2018:DHC:7306   │
│                                                    proofing                                    │
│                                                    treatment    to                             │
│                                                    roof    terrace                             │
│                                                    (WATTA)                                     │
│ 4.      4.8.2000       MHL/PROJ/J/0326             For Silicone 2,30,000                       │
│                                                    sealant work                                │
│                                                    in windows                                  │
│                                        TOTAL = 20,26,194                                       │
└────────────────────────────────────────────────────────────────────────────────────────────────┘

5. After pleadings were complete, the trial court framed the following issues:- “1. Whether this court has no jurisdiction to entertain and decide the present suit? OPD

2. Whether the suit is barred by limitation as alleged in para no.16 in the WS? OPD

3. To what principal amount, if any, is the plaintiff entitled from the defendant? OPP

4. Whether the plaintiff is entitled to any interest, if so, at what rate, for which period and to what amount? OPP

5. Relief.”

6. Trial court has held the issue of territorial jurisdiction against the appellant/defendant by holding that that the payments were made at Delhi, and therefore, the courts at Delhi have territorial jurisdiction. Trial court has also held that the contract has taken place at Delhi, and therefore, this is one another reason that the courts at Delhi have territorial jurisdiction. 7(i). Learned counsel for the appellant/defendant with respect to the issue of territorial jurisdiction argued that courts at Delhi did not have territorial jurisdiction because the purchase order were issued by the appellant/defendant from Jodhpur, and therefore, courts at Jodhpur only will have territorial jurisdiction.

(ii) In my opinion, however, this argument of the appellant/defendant is misconceived because the purchase orders placed upon the respondent/plaintiff by the appellant/defendant are addressed to the respondent/plaintiff at New Delhi, and therefore, acceptance for the work done by the respondent/plaintiff for the appellant/defendant would be when the purchase orders are received at Delhi, and it is at the place of acceptance of the purchase orders that the contract becomes complete, and which is at Delhi. Therefore, courts at Delhi will have territorial jurisdiction.

8. It is also not disputed before this Court on behalf of the appellant/defendant that payments have been made by the appellant/defendant to the respondent/plaintiff at New Delhi.

9. Therefore, since the contract has been concluded at Delhi, and payments have been made at Delhi, courts at Delhi will have territorial jurisdiction vide A.B.C. Laminart (P.) Ltd. and Another v. A.P. Agencies, Salem 1989 (2) SCC 163. The argument urged on behalf of the appellant/defendant that courts at Delhi have no territorial jurisdiction is therefore rejected.

10. On the merits of the matter, trial court has held that the respondent/plaintiff actually completed the work is an undisputed fact, and in my opinion this is a correct finding because the appellant/defendant states that the work was done, but the work was defective. Also, it is not disputed on behalf of the appellant/defendant that the appellant/defendant did make the payment for an amount of Rs. 12,37,782/- to the respondent/plaintiff. Therefore, completion of the work by the respondent/plaintiff for the appellant/defendant cannot be disputed, and thus the fact of the matter is that even if the documents which have been proved by the respondent/plaintiff as photocopies, and were thus such, which could not have been exhibited being photocopies, however ultimately the object behind proving the purchase orders documents was to prove that the work was allotted to the respondent/plaintiff and the respondent/plaintiff did the work, and these aspects are otherwise not disputed as per the pleadings before and the evidence led in the trial court. 11(i) The next aspect argued on behalf of the appellant/defendant was that the work done by the respondent/plaintiff was defective and therefore the respondent/plaintiff was not entitled to any further payment and all the payments which were due to the respondent/plaintiff stand paid.

(ii) Trial court has rejected this argument giving the reason, and which in the opinion of this Court is a valid reason, that if the work was defective then there was no reason why during the period that the work was done in the year 2000, the appellant/defendant had not written even a single letter complaining to the respondent/plaintiff that the work done by the respondent/plaintiff was defective. The first and the only letter written by the appellant/defendant that the work was defective was by the appellant’s/defendant’s Letter dated 15.01.2004/Ex.DW1/PX and which letter is nothing but a response sent by the appellant/defendant to the Notice of the respondent/plaintiff dated 27.01.2003. This reply in any case was delayed by almost one year because the Notice was dated 27.01.2003 and the response of the appellant/defendant is dated 15.01.2004. Trial court was therefore justified in rejecting the defence taken up for the first time vide Letter dated 15.01.2004 by the appellant/defendant that the work done by the respondent/plaintiff was defective.

12. I may note that the respondent/plaintiff has otherwise proved sending of the Notice dated 27.01.2003 asking for payment of interest at 24% per annum alongwith payment of work done as Ex.PW1/F, and therefore, requirements of grant of interest under the Interest Act, 1978 are satisfied.