MEHTA GANDHI AND ASSOCIATES Vs. PIPES LIMITED

JUDGEMENT

(1.) This is an application filed under Section 10, C.P.C. seeking stay of this suit till final disposal of the earlier filed suit by the defendant which is pending in the Court of District dge, Bhilwara.

(2.) I have heard the arguments' and have gone through the documents particularly the pleadings of the present suit and the copy of the plaint of the suit pending in the Court of District Judge, Bhilwara.

(3.) The facts, in brief, are that Shree Pipes Limited (defendant in the present suit, hereinafter to be called "defendant") had entered into an agreement with M/s. Mehta Gandhi & Associates (plaintiff in the present suit) by virtue of which plaintiff was appointed as Consulting Engineer for Asbestos Cement Pressure Pipe Factory building of the defendant where machine foundations water supply, sanitary works, roads, compound wall. residential' building, water tank, safety tank, sockpits, store water drains, effluent drains and other side development works etc. were to be executed. The job of the plaintiff was to see that the factory building to be constructed is an appropriate building according to time tested standards standardised for economy and there were no short comings in the site plan and plant and machinery foundations are done accord- ing to specifications by the Contractors. The plaintiff was to make report regarding the quality of the work being done at the spot and also to certify the construction being done and v, as to work efficiently :',s an Engineering specialist. It was alleged that due to lack of proper supervision and because of non-appointment of any person who had knowledge of the job on the site by the plaintiff and because of lack of continues appropriate and proper supervision at the time of submission of fourth running bill by the contractor, the defendant-company started realising that the plaintiff had no supervision on the construction work and the same was not being looked after properly which resulted in the construction job being done in an unsatisfactory manner. It is pleaded that the plaintiff had been negligent and careless in as much as it certified the bogus bills of the contractor and had not checked the contractor when the building was being constructed in an improper manner and no proper directions had been given by the plaintiff and plaintiff also did not check that a double payment of Rs. 2,60,000.00 has been made to the contractor which lapse was located in the 9th running bill. It was pleaded that from the very beginning the plaintiff used to wrongly certify the works improperly done by the contractor due to negligence and carelessness of the plaintiff the defendant-company suffered a heavy loss. It was pleaded that the works had to be completed by the contractor by certain time and thus time could not be extending except due to some force majure exceptionally bad weather but plaintiff caused grave loss to the defendant by extending the time of construction without any shyme or reason. Then it was pleaded that plaintiff who was to give a plan of drainage but the plaintiff failed to give the same and also was to give reproduceables of all the drawings but plaintiff did not give them and also refused to give cement consumption certificate which plaintiff was found to supply to the defendant- company. So it is stated that due to all these lapses of the plaintiff the defendant-company terminated the contract of the plaintiff vide letter dated March 29. 1985. The defendant- company filed suit in the District Court, Bhilwara claiming a sum of Rs. 1.00.864.00 from the plaintiff and 18 per cent interest over the said amount. It was pleaded that plaintiff was not entitled t.i 2.30 per cent Commission but was entitled to only 1.15 per cent Commission in as much as the plaintiff was to receive his full fee on drawing estimates, supervision and certification of bills by contractors but the plaintiff did not do these things and thus the plaintiff was entitled to only 50 per cent of his fee but he had received fee at the rate of 2.30 per cent and therefore was liable to relund the over paid fee. Then the plca was taken that defendant-company may take to incur expert expenditure by appointing a new architect which may be amounting to Rs. 10,000.00 which the defendant is entitled to deduct from the fee of the plaintiff.