PACT INDIA Vs. SANJIV BHASIN ALIAS LUCKY BHASIN

JUDGEMENT

(1.) This application is moved by the defendant under the provisions of Order XXXVII Rule 3 of the Code of Civil Procedure (for short 'Civil Procedure Code') seeking leave to defend the suit filed by the plaintiff under Order XXXVII Civil Procedure Code. Before dealing with this application, it would be appropriate to know the basis on which the plaintiff has instituted the suit under Order XXXVII.

(2.) As per the averments made in the plaint, the defendant owns a plot of land bearing No.F-200G, situated at Sainik Farms, Village Khanpur , Devali, New Delhi . He approached the plaintiff, who is engaged in the business of construction of houses/buildings for construction of bungalow over the aforesaid plot. The defendant also appointed M/s Design Plus, Architects & Interior Designe,rs( for short 'Architects') for the project. The said Architects prepared plans for construction of the house in question. After the preparation of the plans'and approval thereof, the plaintiff was asked to submit its rates, specification etc. which was agreed to by the defendant. Thereafter an agreement for construction was signed. Construction work to be carried On by the plaintiff was to be supervised by the Architects. In accordance with the understanding arrived at between the parties, payment of the work done by the plaintiff was to be made only after the bill raised by the plaintiff for the work done were duly certified for payment by the Architects appointed by the defendant. The plaintiff had been raising bills from time to time which were linked with the progress of the construction and forwarding the same to the Architects. The Architects used to scrutinise the same and certify for payment and after the certification the defendant was making payment in accordance with the said certification. The plaint further goes on to aver that after some time the payments to be made by the defendant became irregular as he expressed some financial crunch and wanted some accommodation from the plaintiff on the payment front. The plaintiff realised this difficulty of the defendant and without pressing hard for payment, continued with the work when in May, 1999 the defendant approached the plaintiff and requested it to stop work as he had not been able to overcome his financial difficulties by then. He requested the plaintiff to prepare final bill and submit the same to the Architects for verification. He also requested the plaintiff to complete the minial Jobs. The plaintiff accordingly raised final bill dated 31st May, 1997 and submitted the same to the Architects. The Architects verified and certified the same on 9th June, 1997 for Rs.40,83,987.00 which included amounts towards extra work done by the plaintiff. Out of this amount, the defendant from time to time paid a sum of Rs.24 lacs. However, the defendant did not pay the balance amount of Rs.16,83,987.00 inspite of repeated demands and telegraphic notice dated 31st December, 1998 requesting the defendant to release the .amount along with interest at the rate of 24 per cent per annum. 'The suit is therefore filed for recovery of balance amount along with interest at the rate of 24 per cent per annum calculated w.e.f.9th June, 1997 which comes to Rs.6,39,813.00 till the date of filing of the suit.

(3.) In the leave to defend application filed by the defendant, the main defence raised by the defendant is that the plaintiff colluded with the Architects to subserve their vested interest and got the final bill certified for an exorbitant amount. The collusion is clear from the fact that the Architect has certified two bills of same date i.e. 31st May, 1997. Both bills are titled "final bill for residence of Shri Sanjiv Bhasin" . The first bill is for Rs.44,02,188.14 paisa and the second bill for Rs.47,78,487.94 paisa. Whereas first bill is duly signed by the plaintiff, the subsequent bill does not bear his signatures and is clearly result of after thought .in collusion with the plaintiff. It is also the plea of the defendant that the suit does not fall under any category of matter envisaged under Order XXXVII Civil Procedure Code. Various other allegations regarding breach of contract on the part of the plaintiff are imputed in not conforming to terms and conditions.. However, these other aspects were not argued/stressed at the time of making submissions and primarily the challenged was confined to non-maintainability of suit under Order XXXVII Civil Procedure Code and the collusion of the plaintiff with the Architect