Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Order delivered on: August 13, 2014
+ CS(OS) No.1763/2007
NEWGEN SOFTWARE TECHNOLOGIES LTD. ..... Plaintiff
Through Mr.S.C.Sharma, Adv.
versus
THE CONTROLLER, ASMTS, GMCH ..... Respondent
Through None
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. The plaintiff has filed the present suit for recovery of
Rs.3,11,06,700/- (Three Crore Eleven Lac Six Thousand Seven
Hundred Only) against the defendant alongwith pendentelite interest
and future interest from the date of institution to the date of
realization.
2. Brief facts of the case are that the defendant had invited from
the plaintiff submission of proposal for supply, integration and
commissioning of Assam State Medical Transcription Services
(ASMTS) with complete technical details along with Earnest Money
Deposit (EMD) so as to finalize tenders etc. plaintiff in response
thereto submitted its offer alongwith the EMD of Rs.230.42 lacs on
th
18 September, 2004. The same was acknowledged by the
th th
defendant vide letter dated 20 September, 2004 and 14 October,
CS(OS) No.1763/2007 Page 1 of 7
st
2004. The defendant vide letter dated 1 December, 2004 confirmed
the receipt of the proposal and conveyed acceptance thereof to the
plaintiff. Particulars asked for by the defendant were supplied by the
th
plaintiff vide letter dated 6 December, 2004.
th
3. Vide letter dated 20 January, 2005, the plaintiff was asked by
th
the defendant to start the work by March, 2005. The plaintiff on 4
March, 2005 raised an invoice of Rs. 354.45 lacs being 10% of the
Order value as mobilization advance, which was also approved by
th
the defendant on 9 March, 2005. The defendant accorded sanction
of Rs. 2.50 crores as ad hoc advance in favour of the plaintiff vide
five cheques.
4. When the plaintiff presented these cheques, it was informed to
the plaintiff that there were not enough funds in the account of the
defendant. The plaintiff informed the Controller of the defendant i.e.
signatory of the cheques who assured plaintiff soon the necessary
funds would be arranged and the plaintiff should carry on the work.
5. The defendant allegedly asked the plaintiff to sign a special
th
agreement No. 85/05 dated 16 September, 2005 which the plaintiff
did but there is no communication from the defendant to the plaintiff
in respect of the same.
6. It has been stated that subsequently, the defendant started
avoiding the plaintiff despite plaintiff having fulfilled all the conditions
of the defendant and defendant kept on giving false assurances.
CS(OS) No.1763/2007 Page 2 of 7
th th
7. Plaintiff vide letter dated 26 April, 2006 and 16 June, 2006
asked the defendant to refund the EMD amount as plaintiff could no
longer block its money. Plaintiff thereafter sent a legal notice dated
th
4 October, 2006 to the defendant but did not get response from the
defendant.
8. The plaintiff company is incorporated under Company’s Act and
has registered office in Delhi. Suit has been filed by one Mr.A.K.
Saran who is General Manger, Commercial duly authorized vide
th
resolution dated 30 July, 2007.
9. The defendant i.e. the Controller, Assam State Medical
Transcription Services (ASMTS), Guwahati Medical College and
th
Hospital (GMCH) vide letter No.F5/C-11/ASMTS/2004/727 dated 14
September, 2004 requested and invited from the plaintiff submission
of proposal for supply, integration and commissioning of Assam State
Medical Transcription Services (ASMTS) with complete technical
details alongwith Earnest Money Deposit (EMD) so as to finalize
tenders etc.
10. Plaintiff in response to abovesaid invitation of submission of
proposal of defendant submitted its offer for supply, installation and
commissioning of medical transcription services etc. alongwith
Earnest Money Deposit (EMD) of Rs.230.42 lac.
th
11. Defendant vide letter dated 20 September, 2004
acknowledged the offer of plaintiff and the EMD amount as stated
hereinabove.
CS(OS) No.1763/2007 Page 3 of 7
st
12. The defendant again vide letter dated 1 December, 2004
confirmed the receipt of proposal and conveyed acceptance of
proposal to the plaintiff. Further, particulars asked for by the
defendant were supplied to the satisfaction of the defendant by the
th
plaintiff vide letter dated 6 December, 2004.
13. The defendant conveyed of starting the works to the plaintiff by
th
March, 2005 vide its letter dated 20 January, 2005.
th
14. The plaintiff raised invoice No.008 dated 4 March, 2005 for
Rs.354.45 lac being 10% of the order value as mobilization advance
th
and same was approved by the defendant on 9 March, 2005 and
the defendant accorded sanction of Rs.2.50 crore as ad-hoc
advancae in favour of the plaintiff vide five cheques.
15. When the plaintiff presented the abovesaid cheques to its
bankers the manager of the defendant’s bank UCO Bank informed
the bankers (ICICI) of the plaintiff that there were not enough funds in
the account of the defendant.
th th
16. The plaintiff company vide letter dated 26 April, 2006 and 16
June, 2006 requested the defendant to refund the EMD amount of
Rs.230.42 lac as plaintiff coiuld no longer afford to block its sum of
th
money. Thereafter, the plaintiff sent legal notice dated 4 October,
2006 to the defendant but no response from the defendant. The
defendant neither awarded the work to the plaintiff nor refunded the
EMD amount. The defendant is withholding the monies of the plaintiff
for more than 10 years.
CS(OS) No.1763/2007 Page 4 of 7
17. It is mentioned by the plaintiff that besides the present suit the
plaintiff also filed a criminal complaint under Section 403, 406, 409
and 420 IPC being No.2538/2007 against the defendant
Mr.Subhendu Sorcar/Controller, ASMTS, GMCH pending before MM,
South District, Saket, New Delhi. In the said complaint the non-
bailable warrants were issued against Mr.Subhendu Sorcar. The
defendant filed a Criminal Misc.(Main) No.2938/2011; Subhendu
Sorcar vs. State of Delhi & Anr. Seeking quashing of the abovesaid
Criminal Complaint No.2538/2007. The proceedings are still pending
th
before this Court in the category of Regulars. In the letter dated 10
January, 2013 filed by Mr.Subhendu Sorcar in Crl. Misc. (Main)
No.2938/2011 pending before this Court wherein in the last
paragraph of the abovesaid letter which has been exhibited as Exb.
PW-1/23, the defendant has admitted that the EMD amount of Rs.2.5
crore deposited by the plaintiff is at present lying deposited with State
Bank of India, Guwahati (Assam).
18. It is the case of the plaintiff that defendant neither awarded the
work to the plaintiff nor refunded the EMD amount. The defendant is
withholding the money of the plaintiff for more than 10 years and
causing wrongful loss to the plaintiff and wrongful gain to himself.
th
19. The suit was listed before the Joint Registrar on 26
September, 2007 when summons were issued to the defendant in the
suit.
20. Despite service of summons, and appearance of counsel on
behalf of defendant, no written statement was filed and consequently
CS(OS) No.1763/2007 Page 5 of 7
th
the defendant was proceeded ex-parte vide order dated 20
November, 2009.
nd
21. The plaintiff filed its affidavit of evidence as dated 22
February, 2010 and proved the facts stated in the plaint by evidence
by way of affidavit of Mr. A K Saran, General Manger (Commercial) of
the plaintiff as Ext. PW-1/A and also exhibited other documents in
support of its case. The details of the same are as follows:
th
Original Acknowledgment no. 2247 dated 20 September,
2004 from defendant, Ex. PW1/4.
th
Original Acknowledgment dated 14 October, 2004 from
defendant, Ex. PW1/5.
st
Original Memo dated 1 December, 2004 from S. Sarkar,
Controller, defendant, Ex. PW1/6.
th
Letter dated 7 February, 2005 of plaintiff to defendant, Ex.
PW1/9.
th
Copy of Letter dated 15 March, 2005 of plaintiff, Ex.
PW1/12.
th
Letter dated 17 March, 2005 of plaintiff, Ex. PW1/13.
nd
Original letter dated 2 February, 2006 from defendant to
plaintiff, Ex. PW1/19.
th
22. The ex parte evidence of the plaintiff was closed on 26 April
th
2010. However, for the reasons stated therein, vide order dated 30
April, 2010, fresh summons were issued to the defendant.
th
23. Although on 25 February, 2011, one counsel filed memo of
appearance on behalf of the defendant, no written statement was
CS(OS) No.1763/2007 Page 6 of 7
filed, despite repeated opportunities. Consequently, the defendant
th
was proceeded ex-parte vide order dated 10 September, 2012. It
was stated by the plaintiff that no further evidence was required to be
led and accordingly, the ex parte evidence was closed vide order
th th
dated 27 November, 2012. However on 6 February, 2013 the
counsel for the plaintiff stated that he be permitted to file an
application for placing on record certain additional evidence that
came in the hands of plaintiff and were relevant for adjudication of the
th
suit. An additional affidavit dated 13 September, 2013 was filed of
Mr. A K Saran, General Manger (Commercial) of the plaintiff as Ext.
PW-1/B and additional evidence was accordingly closed vide order
th
dated 20 September, 2013.
24. The evidence filed by the plaintiff has gone unrebutted as no
cross-examination of the plaintiff’s witness was carried out, therefore,
the statements made by the plaintiff are accepted as correct
deposition. Under these facts and circumstances, the plaintiff is
entitled for a decree for recovery for a sum of Rs.3,11,06,700/- in
terms of the prayer clause of the plaint. The plaintiff is also entitled to
pendentelite interest and future interest @ 9% p.a. from the date of
filing the suit till the date of payment. The plaintiff is also entitled for
the costs.
25. The decree be drawn accordingly. The suit is disposed of.
(MANMOHAN SINGH)
JUDGE
AUGUST 13, 2014
CS(OS) No.1763/2007 Page 7 of 7