BIJINDER SINGH Vs. SIMPLEX CONCRETE AND PILES INDIA LTD
HIGH COURT OF DELHI
SIMPLEX CONCRETE AND PILES INDIA LTD
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SWATANTER KUMAR, J. -
(1.) Vide judgment and decree dated 21.7.2006, learned Additional District Judge, Delhi partially decreed the suit of the plaintiff Sh. Bijinder Singh against the defendants. The plaintiff being dis-satisfied from passing of the partial decree, has filed the present regular first appeal before this court.
(2.) The necessary facts are that Sh. Bijinder Singh, Sole Proprietor had filed the suit for recovery of Rs. 3,19,590/- against the defendants on the ground that they had been approached by defendant Nos. 2 and 3 in the suit for providing total station survey instruments, surveyor, assistant surveyor and wireless radio (walkie talkie). As agreed on 11.5.2000, the services @ Rs. 60,000/- for total station survey instruments, Rs. 7,000/- for surveyor, Rs. 3,500/- for assistant surveyor and Rs. 2,000/- for wireless radio on monthly basis were to be provided to the defendants. The parties did not sign any written document. The sum of Rs. 10,000/- was paid as advance money. The work was commenced on 12.5.2000. It was the case of the plaintiff/appellant that the respondents had paid a meagre sum of Rs. 47,183/- @ Rs. 25,000/- per month on all counts instead of Rs. 67,000/- per month as agreed. It was also averred by the plaintiff that the agreed rate of Rs. 67,000/- per month was never varied and as such, the plaintiff was entitled to the claimed amount with interest @ 2% per month w.e.f. 10.11.2000 till actual payment.
(3.) The suit was contested by the defendants-respondents who had taken up various legal objections as to maintainability of the suit as well as on merits contending that the agreed sum to be paid to the plaintiff was @ Rs. 25,000/- per month in terms of the detailed work order dated 8.7.2000. The plaintiff had raised the bills on that rates which were never agreed and the defendants had also asked the plaintiff to withdraw the work if he was not satisfied with the rate offered vide their letter dated 30.06.2000. The learned trial court vide its order dated 20.8.2002 framed the following issues:-
1.Whether defendant company requested plaintiff to provide services mentioned in para no. 2 of the plaint? 2.Whether contractual service started from 12.05.2000? If so, its effect?OPP 3.Whether plaintiff suit is barred under provision of Order 30 Rule 10 CPC? 4.Whether plaint has not been properly verified u/O 6 rule 15 CPC? If so, its effect? OPD 5.Whether suit is bad for mis-joinder of the parties?OPD 6.Whether plaintiff was liable to pay ideal charges and compensate defendant no. 1 in case work is not completed in time?OPD 7.Whether plaintiff agreed to do requisite work at a lumpsum payment of Rs.25,000/-per month?OPD 8.Whether plaintiff delayed the work for more than ten days and defendant suffered loss of Rs. 1,80,490/-?OPD 9.Whether plaintiff is entitled for the relief claimed?OPP 10.Whether defendant is entitled for counter claim?OPD;
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