M/S Vijai Infrastructure Limited v. M/S Progressive Constructions Limited

43# $ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) 70/2010 % Decided on: 27th August, 2013 M/S VIJAI INFRASTRUCTURE LIMITED ..... Plaintiff Through:

Mr. Abhinav Vashist, Sr. Advocate with Mr. Nishant Menon and Mr.

Prince Pawaiya, Advocates.

versus M/S PROGRESSIVE CONSTRUCTIONS LIMITED ..... Defendant Through:

None.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA, J (ORAL) 1.

The Plaintiff has filed the present suit under Order XXXVII CPC for recovery of Rs. 19,78,71,711.80 along with the interest @ 18% per annum from the date of the institution of the suit till realization. 2.

Summons to the Defendant were issued under Order XXXVII on 18th January, 2010. The Defendant entered appearance before this Court on 23rd March, 2010 when the counsel for the applicant filed an application seeking summons for judgment under Order XXXVII Rule 4 CPC. The summons for judgment were received by the Defendant on 8th July, 2010 and he filed his application under Order XXXVII Rule 3 (5) CPC being I.A. No.

9493/2010 on 17th July, 2010. However, this application of the Defendant was dismissed for non-prosecution on 12th August, 2013 as none was present on behalf of the Defendant on the said date nor was the Defendant represented on 12th February, 2013. Thus the Plaintiff prays for a judgment under Order XXXVII CPC.

3.

The case of the Plaintiff is that the Plaintiff is a company duly incorporated under the Companies Act and the suit has been instituted by Shri M.L. Sharma, its authorized representative in whose favour the Board Resolution dated 5th January, 2009 authorizing him to file the suit on behalf of the Company has been placed on record. The Defendant is also a company duly incorporated under the Companies Act. The Defendant Company formed a joint venture with one M/s Sunway Construction Berhad under the name and style of M/s PCL-SUNCON ("JV") wherein the Defendant held the majority financial stake. The Defendant submitted a bid in the name of the joint venture to the National Highway Authority of India (in short „NHAI‟) for the work of four laning of part of NH-2. The main contract was awarded for a sum of Rs. 396,47,78,901/-. The Defendant approached one M/s K.R. Anand as a sub contractor for execution of the part of the project which in turn approached the Plaintiff. Thus the Defendant

appointed the Plaintiff as a sub-contractor vide its agreement dated 25th February, 2002 which has been placed on record. The value of the part project awarded to the Plaintiff was Rs. 90 crores. Pursuant to the agreement and as per the terms and conditions of the main agreement between NHAI and the joint venture the Plaintiff fulfilled the Defendant‟s obligation under the main contract. The Plaintiff also paid to the Defendant amounts against the performance security given by the Defendant to NHAI for the portion of the project sub-contracted to the Plaintiff. The Defendant also deducted retention money from the running bills of the Plaintiffs. Thus the total amount due and payable by the Defendant to the Plaintiff is as under:- PARTICULARS AMOUNT Towards performance security Rs.

1,5741,509/- (Rupees One Crore initially deposited by M/s K R Fifty Seven Lakh Forty One Anand, which was to be refunded to Thousand Five Hundred Nine Only) the Plaintiff by the Defendant in terms of the letter issued by M/s K R Anand dated 5th January, 2010 (@ Pg. No. 2 of Plaintiff‟s documents) Towards balance amount Rs. 64,99,286/- (Rupees Sixty Four performance security deposited by Lakh Ninety Nine Thousand Two the Plaintiff.

(reflected in Hundred And Eighty Six Only) Defendant‟s ledger @ Pg. No. 3 of

Plaintiff‟s documents) Towards balances for the work done Rs. 59,77,922.14 (Rupees Fifty Nine during the contract period. (reflected Lakh Seventy Seven Thousand Nine in Plaintiff‟s ledger @ Pg. No. 9 of Hundred Twenty Two and Fourteen Plaintiff‟s documents) Paise Only) Towards retention money deducted Rs. 5,49,37,944/- (Rupees Five Crore from the bills of the Plaintiff.

Forty Nine Lakh Thirty Seven (reflected in Defendant‟s ledger @ Thousand Nine Hundred Forty Four Pg. No. 4 of Plaintiff‟s documents) Only) Towards bank guarantee margin Rs. 60,00,000/- (Rupees Sixty Lakh money for purchase of bitumen/HSD Only) from Indian Oil Corporation Limited (reflected in Defendant‟s ledger @ Pg.

No.

5-6A Plaintiff‟s documents) Towards additional work done Rs.1,49,74,540.66 (Rupees One during maintenance period (As per Crore Forty Nine Lakh Seventy Four original statement of work @ Pg. No.

Thousand Five Hundred Forty and 8 of Plaintiff‟s documents) Paise Sixty Six only) Towards excise duty reimbursement.

Rs.3,50,00,000/- (Rupees Three Crore Fifty Lakh only) Amount withheld by the Defendant Rs.5,87,40,510/- (Rupees Five Crore on the untenable ground that NHAI Eighty Seven Lakh Forty Thousand had not paid the said amount to the Five Hundred Ten only) Defendant

4.

The Plaintiff has placed on record its ledgers and the Defendant‟s ledger to support the claims made. Despite service of legal notice dated 18th November, regarding payment outstanding amount Rs.19,78,71,711.80 the Defendant has neither replied to the notice nor disputed or denied the liability. The Defendant has admitted the liability in its ledgers accounts, copies whereof have been placed on record. This Court has territorial jurisdiction to entertain the suit as the written agreement dated 25th August, 2002 between the parties had been executed at Delhi and the substantial part of the cause of action has arisen in Delhi. Consequently, a decree is passed in favour of the Plaintiff against the Defendant for a sum of Rs. 19,78,71,711.80 under Order XXXVII CPC. The Plaintiff is also entitled to the interest @9% per annum from the date of filing of the suit till the realization. Decree sheet be drawn accordingly. 5.

The suit stands disposed of.

(MUKTA GUPTA) JUDGE AUGUST 27, 2013 'vn'