Delhi District Court
Kalyan Singh Bachhil vs M/S Utility Powertech Limited on 20 June, 2020
In the Court of Sh. Laxmi Kant Gaur, District Judge
(Commercial Court) North-East, KKD, Delhi
CS (Comm.) No. 04/2019
Kalyan Singh Bachhil
Age: 45 years
Avocation: Business
S/o Sh. Jagdish Prasad Bachhil,
Proprietor of M/s Bachhil & Sons
Having ofice at D-6/29A,
Dayal Pur, Karawal Nagar Road,
Delhi-110094 .......Plaintiff
Versus
M/s Utility Powertech Limited
Head Office:
UPL House, W-24, Sector -11
Noida-201301 UP
Through its Director ....Defendant/Counter-claimant
Date of filing of the suit : 10.04.2012
Date of reserving judgment : 13.03.2020
Date of judgment : 20.06.2020
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JUDGMENTS IN MAIN SUIT AND COUNTER-CLAIM
Preliminary
1. There are two Judgments being written here one followed by the
other. In the first Judgment I propose to decide the suit filed by the
Plaintiff bearing no. CS (Comm.) No. 04/2019 for the recovery of
Rs.81,11,473/- with interest at the rate 18% per annum from the date of
filing of suit till realization and in the second Judgment Counter-Claim
filed by the defendant against the plaintiff for the recovery of
Rs.18,92,504/- with interest at the rate of 18% per annum from the date
this amount became due till realisation.
Kalyan Singh Vs. Utility Powertech Limited Page 1 of 68
2. Since the facts stated and the evidence led is common in the Suit
and the Counter Claim, same are being narrated only once in the suit and
not repeated in the Judgment written for Counter-Claim.
3. It may be further stated initially when the Counter-Claim was filed
before the Hon'ble High Court it was separately registered and numbered
but after it was transferred to Districts Courts, because of the increase in
the pecuniary jurisdiction of the District Courts, it appears only Suit was
registered afresh by Court of Ld Addl. District Judge 02 North East but
inadvertently not the Counter Claim. This had gone unnoticed after the
case was transferred to the Court of Addl. District Judge No.1 North East
and from the Court of Addl. District Judge No.1 North East to this Court.
At this stage I would not like to change anything. Therefore the suit and
the Counter Claim may be treated to be bearing the same number.
Judgment in Main Suit
Facts
Facts according to plaint
4. Plaintiff is proprietor of M/s Bachhil and Sons, a firm in the business of providing erection, testing and commencement of High Voltage Distribution Systems (HVDS) and LTMP systems services. Defendant Company on the other hand is a joint venture of Reliance Infrastructure Ltd and NTPC LTD.
5. Defendant had awarded various work orders to the plaintiff in the year 2004-2005 for the erection of complete equipment for the implementation of HVDS system and testing and commissioning of HVDS system in terms of the Scope of Work in various localities in the Distribution area of BYPL in Delhi.
Kalyan Singh Vs. Utility Powertech Limited Page 2 of 686. It is stated that the Plaintiff had been raising running account bills and defendant had been making on account payments to the Plaintiff, except for the ones details of which have been provided in the Plaint work-order wise amounting to Rs.81,11,473.
7. It is alleged that plaintiff had been writing letters to the defendant to make the payment to which defendant had been giving false and frivolous replies. It is though claimed at the same time that the defendant had been assuring that the payments would be made by it to the Plaintiff.
8. Finally a legal notice dated 05/02/2010 was sent by plaintiff to the defendant which had been replied to by the defendant stating inter-alia that Work Orders could not be closed because of non-compliance of certain actions from the side of the plaintiff including plaintiff having not submitted Electrical Inspector's approval for all the installations and asked the plaintiff to get the approval from electrical inspectors of respective areas in which the plaintiff had worked. It was further alleged that the defendant had paid an extra amount of Rs.18,92,504/- which it was entitled to recover. This reply of the defendant was replied to by the Plaintiff denying any over payment having been made.
9. Defendant had sent a separate demand notice dated 15/10/2011 to the plaintiff for the recovery of Rs.18,92,504/- stating inter-alia that a sum Rs.37,01,705/- and Rs.58,184 was recoverable by the defendant from the plaintiff on account of recovery of "balance material" and also payments towards "Watch and Ward" respectively. After adjusting the amounts payable by the defendant to the plaintiff against the amount recoverable by the defendant, plaintiff was under liability to pay an amount of Rs.18,92,504 to the defendant. Plaintiff had replied to the said notice and by its reply of 10/12/2011 and denying all the allegations.
Kalyan Singh Vs. Utility Powertech Limited Page 3 of 68Facts according to written statement
10. Defendant in the written statement filed has taken the objection that the suit filed by the plaintiff is barred by limitation. It is stated that all RA bills referred to are of the year 2005 except one which is stated to be of the year 2007-08. The suit had been filed in March 2012. Thus on the face of it the suit filed by the plaintiff is barred by limitation. It is clarified that the reliance of the plaintiff on the letter of the defendant dated 23/02/2010 to cover delay is misplaced. This letter is in the nature of demand by the defendant and not in the nature of an acknowledgement of liability by the defendant as is being claimed by the plaintiff. Even otherwise said letter was sent after three years of the accrual of the right of the plaintiff to recover the money from the defendant and thus be of no avail.
11. Similarly the claim of the plaintiff to say that the suit has been filed with in limitation on the bases of the legal notice will be of no help for a legal notice which is not statutorily required does not extend the period of limitation. In the present case even this legal notice sent was beyond the limitation period.
12. It is stated that the work contract was awarded to the plaintiff for the installation of HVDS in the identified localities of East and South Delhi under the distribution of areas of BYPL and BRPL. It is added that this entire work of erection, testing and commissioning was required to be completed within two months of the work order being placed on the terms and conditions stated therein in accordance with the 'scope of work'.
13. It is alleged that the Plaintiff though started the work but did not complete it in accordance with the terms of the contract. Deficiencies were pointed in the works to the plaintiff and they were also brought to Kalyan Singh Vs. Utility Powertech Limited Page 4 of 68 his notice by writing many letters asking him to complete the work within a week of the notices sent making it clear that in case of plaintiff fails to do so, defendant would have this uncompleted work completed through other contractors and it did so through one another contractor by the name of M/s M.S. Electricals.
14. Defendant had served on the plaintiff a letter dated 22/06/2006 (received by plaintiff on 29/06/2006) giving him schedule of the joint inspection to be carried out between 22/07/2006 and 25/07/2006 with the target to close the contract by 31/07/2006. Till 25/07/2006 defendant had received total bills of Rs.94,57,174 against the work done by the plaintiff by that date. For the completion of the work which had not been completed defendant had engaged another contractor M/s M.S Electrical (already named above) and paid him Rs.7,67,169/-. This sum was deducted from the payment to be made against the said bills. It is stated that there was another sum of Rs. 4,78,983/- which was to be deducted in terms of the mandate of the contract according to which quantity of work was to be accepted and verified by the client REL (Reliance Energy Limited). It is stated that REL accepted the final bill after deducting the said amount.
15. Thus according to the defendant total amount payable to plaintiff was Rs. 82,11,022/-. Out of this, as against the running bills, defendant had already paid Rs. 63,43,637/- to the plaintiff ( Rs. 58,46,373/- + Rs.2,08490/- TDS + Rs. 2,88,774 WCT - work contract Tax). Thus an amount of Rs.18,67,385, which remained to paid by the defendant to plaintiff. At the same time it has been submitted on behalf of the defendant that there was in total an amount of Rs.37,59,889/- which was recoverable by the defendant from the Plaintiff which included Rs.58184/- on account of 'Liquidity Damages' as per para 12 of the Kalyan Singh Vs. Utility Powertech Limited Page 5 of 68 preliminary objections ( in para 12 of the counter claim this amount has been shown to be recoverable under the heading " Recovery for Watch and Ward) and Rs.37,01,705/- recoverable on account of " material liability.
16. It is stated finally it is the defendant who is to recover an amount of Rs.18,92,504/- from the Plaintiff after adjusting Rs.18,67,385/- payable by the defendant to the plaintiff against the amount of Rs.37,59,889/- recoverable by the defendant from the plaintiff.
17. Defendant is stated to have sent a notice dated 05/02/2010 to the plaintiff demanding payment of the said amount. Thereafter a letter dated 23/02/2010 was sent by the defendant reaffirming this fact of excess payment having been made to the plaintiff and asked him for the return of the said money. It was followed by a legal notice of 15 th October 2011. It was reiterated in this legal notice, as in previous correspondence, that the plaintiff had not obtained Electrical Inspector's report as was required under para 1.1 (h) of annexure 1 annexed with 'Work Order'.
18. Thus Defendant has made a Counterclaim of Rs. 18,92,504/- on the Plaintiff. It has been denied from side of defendant that the plaintiff is entitled to recover the suit amount from the defendant.
Replication/reply by plaintiff to written statement/counter-claim
19. In the replication filed plaintiff has denied all the allegation of the defendant including that that the claim of the plaintiff is barred by limitation and the defendant is entitled to recover anything from the plaintiff. On the contrary it has been alleged that the Counter-claim is barred by limitation. He has reiterated the stand taken by him in the plaint.
Kalyan Singh Vs. Utility Powertech Limited Page 6 of 68Replication to reply of plaintiff to counter- claim by defendant
20. Defendant too has filed a replication to the reply to its Counter-
claim submitted on behalf of the plaintiff, denying the allegations of the plaintiff and reaffirming its position.
Issues
21. Following were the issues framed in the main suit filed and the counter-claim:
Issues framed in the suit:
i) Whether the suit is barred by limitation? OPD
ii) Whether the Plaintiff is entitled to a decree in the sum of
Rs.81,11,4573, as claimed, together with interest @ 18% p.a? OPP
iii) Relief Issues framed in the Counter-Claim:
i) Whether the CC is barred by limitation? OPP
ii) Whether the CC is not signed, verified and filed by competent person of Defendant? OPD
iii) Whether the defendant is entitled to recover from the Plaintiff the sum of Rs.18,92,504/- together with interest @18% p.a. till realisation? OPP
iv) Relief Examination of witnesses Examination of witnesses by plaintiff
22. From the side of plaintiff, plaintiff had examined himself (PW1) in support of his case. He had filed his affidavit in examination -in -chief Kalyan Singh Vs. Utility Powertech Limited Page 7 of 68 drawn on the lines of his case as stated in the pleadings. In the affidavit filed he had referred to work orders, various bills raised on the defendant, letters written to the defendant and other authorities urging the defendant to clear his outstanding dues, replies given from the side of defendant, legal notice sent by the plaintiff to the defendant, legal demand notice sent by the defendant to the plaintiff and reply thereto by the plaintiff and the certified copy of the written statement and a documents filed by electrical inspector in a suit filed by the plaintiff where in inter-alia electrical inspector had taken the stand that plaintiff had no locus standi to apply for the grant of the approval.
23. Plaintiff had examined one more witness (PW2) Sh. Mukesh Kumar Sharma Asst electrical inspector (notified electrical inspector) Govt. of NCT of Delhi. He had deposed that plaintiff had filed a suit against Govt. of NCT of Delhi wherein Electrical Inspector was impleaded as defendant No. 3. He had filed a written statement in that case along with the documents. He had identified the said written statement and the documents filed in the said case from his side as ExPW1/61 (collectively). In the cross examination he had deposed that he did not have any personal knowledge of the sites where the inspections were carried out. He had stated further that the inspection had been carried out by some previous officers.
Examination of witness from the side of defendant
24. From the side of the defendant one Sh. Anil Kumar Tiwari, Deputy Manager, of the defendant company was examined in support of the case of the defendant company. He had filed his affidavit drawn on the lines of the case of the defendant. Along with the affidavit he had filed a copy of authorisation letter executed in his favour by the defendant company to Kalyan Singh Vs. Utility Powertech Limited Page 8 of 68 appear in the court and depose on its behalf. In his affidavit he had referred to work orders, letters written from the side of the defendant to the plaintiff to rectify the defects and to complete the work as per the punch list enclosed failing which defendant would be constrained to get the work completed at the risk and cost of the plaintiff, letter written by the defendant to the plaintiff intimating the plaintiff schedule for final joint measurement, summary of bills and payments statement prepared by defendant on the basis of the records available with the defendant, letters written by the defendant to the plaintiff for the returning of the material, letters written by the defendant company and NTPC to the plaintiff for the return of excess payment of ₹ 1,892,504/-and legal notice dated 15.10.2011.
Hearing of submissions
25. I have heard advocates of the parties and have gone through the record of this case.
Findings on issues framed in the suit:
Issue No.1 Whether suit is barred by limitation? OPD What is stated in the plaint?
26. Plaintiff in the plaint (para no. 11) filed has taken the stand that the present suit filed by the plaintiff is within limitation "because as per the defendant itself the work order has not been closed till 23.02.2010. The plaintiff would be entitled to get his full outstanding amount on the completion of complete job in terms of the work order. Although it is a serious issue between the parties required to be decided by this Hon'ble court. The limitation for recovery of outstanding amount will start only Kalyan Singh Vs. Utility Powertech Limited Page 9 of 68 from the date of the closure/completion of work in terms of work order. Therefore, the cause of action is a continuing one. The cause of action will continue till the issue of the closure of the work is not finally settled and the payment of the outstanding bill amount is not made to the plaintiff by the defendant". (Emphasis supplied) If for the purpose of limitation case would be covered under Article 18 or 113 of the schedule of Limitation Act
27. According to the counsel for the defendant as per the allegation of the Plaintiff himself the work had been completed in 2006 for the payment of which bills had been raised. Once it is stated that the work had been competed the limitation would begin to run from the date of the completion of the work in terms of Article 18 1of the schedule of the Limitation Act. He, however, had added that in this case the last payment which had been made by the defendant to the plaintiff was on 07/02/2007 and therefore at best it can be said that the limitation would start to run from the said date. Since the suit was filed on March, 2012, therefore from any angle it cannot be said to be within limitation.
28. On the other hand it was submitted on behalf of the Plaintiff that present case in not covered by Article 18 of the Schedule of the Limitation Act but Article 113 2 of the Act. According to her Article 18 covers only those cases where there is nothing in the contract as to the time of the payment for the price of the work done. In such cases the limitation would begin to run from the time when the work is complete. In the present case, as per the contract, plaintiff could recover the money 1
18. For the price of work done by the plaintiff for Three years When the work is done.
the defendant at his request, where no time has been fixed for payment.
2113. Any suit for which no period of limitation is Three years When the right to sue accrues.
provided elsewhere in this Schedule.
Kalyan Singh Vs. Utility Powertech Limited Page 10 of 68from the defendant only after all the bills raised by the plaintiff to the defendant had been certified by REL. Once the bills had been certified by REL engineer in-charge, payment would be released within 30 days thereafter. In support of her submission she had made reference clause 14 of the Work Order. She had asserted that it was for the defendant to inform this court as to when bills raised by the Plaintiff were certified by the Engineer in-charge of REL. She had alleged that the fact of the matter is that there had been such certifications but not communicated to the Plaintiff.
29. According to her in the given facts of the case the right to sue would have accrued in favour of the plaintiff only after the defendant had denied its liability to make the payment. Since defendant had denied its liability to pay for the first time by letter dated 12/05/2010, therefore the limitation would start to run form that date in terms of Article 113 of the Schedule of the Limitation Act. The suit was filed in March 2012, i.e. within three years of this letter of 12/05/2010 and therefore can be said to be within limitation.
30. One may here refer to the judgment of the Hon'ble High Court of Delhi in M/s Decor India (P) Ltd V. Delhi Stock Exchange 2012 SCC OnLine Del 3248, relied upon by the plaintiff, wherein it was stated "It is a settled legal position that to determine whether any suit is barred by limitation or not the allegations levelled in the plaint are to be looked into and not the defence set up by the other party in the written statement." It would, therefore, be appropriate to confine ourselves to what has been stated in the Plaint.
31. It may also be stated that while defending the question of limitation, Plaintiff cannot lean on what is the stand of the defendant. He Kalyan Singh Vs. Utility Powertech Limited Page 11 of 68 is required to defend the question of limitation as is the case presented by the Plaintiff himself. If the plaintiff is prepared to accept what has been stated by the defendant that the Plaintiff did not complete the work then he will have no case against the defendant. The statement "job order could not be closed because of non compliance" in the letter dated 23 Feb,2010 ExPW1/ 56, is it be read in the context of that letter where in plaintiff had been requested to " obtain clearance certificates from the concerned electrical inspector" as it formed part of the scope of the work. At the end it is stated in this letter that an urgent action may be taken by the plaintiff so that the work order may be closed.
32. The fact of the matter is that it has been stand of the plaintiff that he had completed the work and done everything which could be done for getting the payment not paid for. From the stand point of plaintiff his demand for payment was justified for he had completed the work. A similar stand was taken by the defendant in para no. 8 of the legal notice (Ex PW1/59) sent by the defendant to the plaintiff dated 15/11/2011 and this is what had been stand taken by the plaintiff in reply ( Ex PW1/60- para 8) thereto: " in reply to this para it is submitted that the works in regard to all the colonies had already been executed properly by our client way back in the year 2006 and 2007 and all sites had also been handed over to your client after charging, testing and commissioning of the HVDS system in terms of the work order. It is also submitted that the BSES is already supplying the electricity in those colonies without any trouble even after the five-six years of the handing over of this site to your client. Moreover, in terms of the rule 63 of the Electricity Rules 1956 the electric supply shall not be commenced by the supplier unless and until the inspector is satisfied that the provisions of the rule 65 to 69 have been complied with and the approval in writing of the inspector who Kalyan Singh Vs. Utility Powertech Limited Page 12 of 68 obtained by him. The said rule makes it more clear that the approval of electrical inspector has already been taken." Thus so far as the Plaintiff is concerned work was complete including the approval of electrical inspector. From the perspective of limitation, like it has been stated before, what matters is the stand of the plaintiff and not what is being said by the defendant in defence. Plaintiff cannot, therefore, take the stand that the cause of action is continuing because the defendant says plaintiff did not complete the work. There is absolutely no bases of saying that so long as the payment is not made the cause of action would continue. Cause of action is the raison d'être for seeking the payment. It is only after cause of action has crystallized the right to seek relief would arise.
33. Fact of the matter is, it is a consistent stand taken by the plaintiff that he had completed the work and entitled for payment. It was stated during the submission also that there had been certifications given by the engineers of REL but no communicated to plaintiff. Thus there was nothing left to be done from the side of the plaintiff except to get the payment from the defendant. One may also take note of what has been stated by the Plaintiff in legal notice sent by the plaintiff to the defendant and also what has been stated by him in the plaint itself.
34. Relevant part of the legal notice dated 05/02/2010 Ex PW1/58 sent by plaintiff to the Defendant reads as under:
(Opening + para 1 and 2):
"please be puriviewed (sic) the grievances of a bona fide contractor having done full- fledged works for more than accosting ( sic) contract's miscellaneous works of H.V.D.S erection and electrical equipments and other upsorts ( sic) whatsoever of which details may well be perused under the files Kalyan Singh Vs. Utility Powertech Limited Page 13 of 68 and completion of physical works well verified whatsoever yet payment being withheld malafidly (sic) and ulteriorly (sic) by ministerial underneath officers who ever ulteriorly as an ill motive to bargain from the contractor out of rendering due amount of completed contract for a lump sum of about Rs. 81,11,473.00 ( Rupees Eighty one lakhs, eleven thousand, four hundred and seventy three only) main due amount and further retrospectively compounding gross total amount of about Rs.1,55,00,000/- ( Rupees One Crore, Fifty Five lakhs only) which have been consequently accountable as follows :
1. That NTPC and Reliance Energy Ltd through utility Power Tech Ltd engaged the applicant and implied contract for regular works of HVDS and LT MP and such miscellaneous works under REL & BSES and Ministry of Energy of Government of India/MCT and of course as per rules and regulations since 2004 to 2009 have been completed as fully as well described in the schedule appended thereto as Annexure A to this notice and as finished works duly got verified at the appropriate moment and partly paid of the contract it works which, of course after verification was accepted which are being annexed as Appendix No. B. The bills were passed in due course but actual payment have not been cleared standstill in spite of various representations and redressals whatsoever.(sic)
2. That the liabilities are bent upon all of you to be paid and cleared the dues with interest whatsoever payable upon the amount of Rs. 81,11,473 at first at once as works done but Kalyan Singh Vs. Utility Powertech Limited Page 14 of 68 rendering in spite of part payments that rest principal amount is due.
35. Again Plaintiff makes an assertion in the legal notice that he did complete the work. Para No.3 as under:
"That consequently you are required under natural justice and warrants of law to pay interest accounting lump sum of interest since each and every bill became due upon fulfilment of provided contractual works and verifications whatsoever thereof."(sic)
36. In Para no. 4 of the plaint he provides the details of the running bills raised and not paid for. It clearly appears that all the bills which have been referred to are of 2005-2006 except the last one which is of 15/03/2007. It is not as if he has not been demanding the money. Fact of the matter is he has been demanding it right from 2007. It goes without saying; he would not have demanded money inspite of not having completed the work. Para no. 6 of the reads as under:
"That in this regard plaintiff has been contacting the defendant as well as other constituents and concerned authorities orally as well as in writing such as through letters dated18.05.2007,15.02.2008,25.02.2008,13.03.2008,14.03.20 08,27.03.2008,27.03.2008,25.04.2008, 08.09 .2008, 22.10 2008, 21.11 .2008, 20.12 .2008, 1.06 .2009, 27.0 7.2009. 20.10. 2009 and 02.12 .2009 for making the payments. Ministry of Power, vide its letters dated 26.8 .2009 and 22.4 . 2011 has directed to redress the grievance of the plaintiff. But the defendant has been careless, negligent and oblivious in clearing the outstanding dues of the plaintiff. The defendant Kalyan Singh Vs. Utility Powertech Limited Page 15 of 68 sent false and frivolous replies dated 20.3 .2008, 26.8 .2009, 23.2 .2010, 22.4, 2010 and 12.05 .2010 to the plaintiff. The defendant also has been giving assurances to the plaintiff for the settlement of his accounts but the same now has been found to be false and misleading."
37. Therefore to say that limitation would have remained open and Plaintiff could have filed the suit at any time is without any basis.
38. Like it has been noted before according to Ld Counsel for the Plaintiff this case is not covered by Article 18 of the Schedule appended to the Limitation Act, as is claimed by the Counsel for the defendant, but Article 113 of the schedule of Limitation Act.
39. Before proceeding to appreciate what has been stated by the counsel for the Plaintiff, one may note that the work order refers to two kinds of works one is for "Erection of complete equipment for implementation of HDVS system as per scope of work (Annexure
1) ... ... ..." . Terms and conditions of this Work Order are governed by Annexure A appended thereto. Other Work Order is for "Testing & Commissioning of HVDS system as per scope of work (Annexure
1) ... ... ...." Terms and conditions of this Work Order were being governed by B. (Ex PW1/D1 and Ex PW1/D2).
40. Clauses 14 in both the annexure A and B relate to "PAYMENT TERMS" but they are not the same. Clause 14 in Annexure A relating to erection work reads as under:
"14. Payments Terms
- 70% Progressive payment on Monthly basis. RA bills to be certified by Engineer In Charge of REL.Kalyan Singh Vs. Utility Powertech Limited Page 16 of 68
- 20% to be paid on Mechanical Completion of Erection duly certified by REL Engineer in-charge. (Service Connections are not included at this stage).
- 10% after 6 months from the date of Handing Over of the equipment of colony. The maximum period of handing over shall be 6 Months from the charging of the system. However, the above payment can be released on handing over on submission of Bank Guarantee of equivalent amount."
41. Clause 14 in Annexure B related to testing and commissioning reads as under:
14. Payment Terms
a) 90% contract value shall be paid on:
i) Testing & commissioning of equipment/ system
ii) Submission of test reports.
b) 10% after 6 months from the date of Testing and Commissioning of the equipment of colony. However, the above payment can be released, on Testing & Commissioning on submission of Bank Guarantee of equivalent amount.
All payment will be release within 30 days of certification of bills by Engineer-in-charge.
42. Therefore, it does appear from clause 14 of Annexure B that there is a time prescribed that the payment would be released within thirty days of the certification of Bills by Engineer-in-chief. It would be therefore correct to say that the so far as Bills related to testing and commissioning are concerned, there is no ambiguity that limitation for such Bills would be not counted from the date of the completion of the work but after thirty days from the date Bills have been certified by the Engineer-in- chief. Therefore, it would be correct to say in case of these Bills Article 18 would not be applicable.
Kalyan Singh Vs. Utility Powertech Limited Page 17 of 6843. So for as the Payment Terms related to Erection of equipments for the implementation of HVDS are concerned, there is no such waiting period of 30 days at least for 90% of the payment. Rest of the 10% of payment is actually holding some part of the payment to ensure the equipments are returned to the defendant. This much of the payment of 10% is to be released only after six months of the handing over of the equipments. This payment, however, could be immediately released on the handing over of the equipments in case plaintiff furnishes a bank guarantee of the same amount. Of course the payments are to be released on certification of work by the engineer-in chief. The same is quite understandable for it is certification which would signify the completion of work. Thus so far the complete payment is concerned; plaintiff would not become entitle to recover the payment just after the work has been certified. He will have to wait for the complete settlement of his claim for six months "from the date of Handing Over of the equipments of colony". Thus though this clause is a bit differently worded but when it comes making the full payment there would be waiting period and it would not become immediately due once the work has been completed. In my view therefore in this case as well Article 18 would not be applicable.
44. One might therefore say in the facts of the case, it is not Article 18 but Article 113 of the schedule of the Limitation Act which will have the applicability. It provides that any suit for which no limitation has been provided elsewhere in the schedule a suit can be filed within a period of three years from the date the right to sue accrues.
Kalyan Singh Vs. Utility Powertech Limited Page 18 of 68If right to sue accrued when defendant declined to make payment
45. According to the counsel for the plaintiff the right to sue had accrued in favour of the plaintiff when defendant for the first time denied his liability to pay by the letter dated 12/05/2010.
46. It would be instructive to go back to the judgment of Hon'ble High Court of Delhi in M/s Decor India (P) Ltd V. Delhi Stock Exchange (supra) referred by the counsel for the Plaintiff. The facts of the case in brief were like this:
The plaintiff was given the contract by the defendant to carry out the renovation and interior works in their new and old buildings. The plaintiff executed both the said awarded contracts including extra/additional jobs arising during the pendency of the said contract. Plaintiff had submitted that the final bills in respect of both the contracts were forwarded to the Architect for issuing final certificate vide their letters dated 12.3.2000 and 22.3.2000 respectively. As per the plaintiff, the Architect while issuing the final bill certificates for the new and the old buildings made certain deductions in the said final bills by changing their measurements as recorded earlier and also by reducing certain rates and consequently with the deductions as carried out by the Architect the bill amount for the new building was reduced to Rs.
2,41,34,961.82 and for the old building the same was reduced to Rs.89,98,400.51/-. Architect had certified the final bill on 23.6.2000. Plaintiff thereafter had sent Kalyan Singh Vs. Utility Powertech Limited Page 19 of 68 various reminders to the defendant for carrying out necessary corrections in their final bills but the defendant did not give any response and finally vide their letter dated 25.9.2001, the defendant refused to make payment of the balance outstanding dues of the plaintiff. The plaintiff in its reply dated 26/29.9.2001 seriously refuted the allegations levelled by the defendant in their letter dated 25.9.2001. Plaintiff stood by the amount raised in the final bills and after giving adjustment of the payment received by the plaintiff against the said bills, according to the plaintiff, an amount of Rs. 38,16,270.10 was outstanding in respect of the both the buildings.
47. In these facts Hon'ble High Court had observed as under:
"13. Hence, in nutshell dispute between the parties arose on account of the fact that the plaintiff was standing by the amount of the final bills as were raised by the plaintiff and the defendant was going by the amounts of the bills as were certified by the Architect in terms of clause 6 of agreement. Therefore there arose a conflict between the parties regarding the final amount to be paid by the defendant to the plaintiff due to the fact that the Architect had submitted the final bill of a different amount than what was claimed by the plaintiff. The plaintiff thereafter wrote various letters to the defendant for payment of the amount in accordance with the bill submitted by the plaintiff and as per the plaintiff the right to sue accrued on 25.9.2001 when the defendant finally turned down the request of the plaintiff. It is a settled legal position that the accrual of cause of action cannot be Kalyan Singh Vs. Utility Powertech Limited Page 20 of 68 postponed by writing reminders or sending reminders. (Major(retd.) Inder Singh Rekhi v. Delhi Development Authority, (1988) 2 SCC 338). Hence the plaintiff in the present case could not keep the claim alive by writing letters and reminders to the defendant thus postponing the accrual of the right to sue by more than a year i.e from 23.6.2000 to 25.9.2001 while the claim had become time barred on 23.6.2003. If the contention raised by the counsel for the plaintiff is accepted that refusal itself would govern the period of limitation then by that analogy if such a refusal is not done for a considerable period of time say for 4-5 years, then the same would not extend the period of limitation. Once the plaintiff's right to legitimately claim the amount of the final bills accrued after they were certified in terms of clause 6 of the agreement by the Architect, then from that date itself the period of limitation would start. At best the reasonable period of demand notice, if any, can be added in the said period and not beyond of this period. However, the demand notice cannot be given after a period of one year but within a reasonable time frame only." (Emphasis supplied)
48. If we go back to the facts of this case, it is the case of the plaintiff he had completed the work in the year 2006-2007 and handed over the site after charging testing and commissioning of HVDS systems in terms of the work order. Counsel for the plaintiff also stated that bills and been certified by the engineers of REL though not communicated, then the Kalyan Singh Vs. Utility Powertech Limited Page 21 of 68 cause of action was ripe for filing the suit in 2006-2007 itself. In any case as per para no. 6 (already reproduced above) of the plaint, plaintiff wrote his first letter dated 18.05.2007 to the defendant for making the payment. It can safely be said that at least on that date when the plaintiff wrote the letter for making the payment there was a cause action ready for filing the suit. As has been by the Hon'ble High Court, the limitation cannot be extended by repeatedly raising the same demand. It also cannot be postponed awaiting the refusal from the other end of the demand made, like in this case for years together.
Conclusion
49. I am of the view that in the given facts of the case, it can be said that the suit filed by the plaintiff is barred by limitation. I am accordingly deciding this issue in favour of the defendant and against the Plaintiff.
Issue No.2 Whether the plaintiff is entitled to a decree in the sum of Rs. 81,11,473, as claimed together with interest at the rate of 18% p.a ? OPP No clarification if all the requirements for the release of payments as to the 'bills' referred to in the plaint had been met
50. I have gone through the plaint and it would show that the present suit has been filed by the plaintiff on the basis of unpaid Running Account Bills raised by the Plaintiff relating various work orders and also bills raised for "additional works".
Kalyan Singh Vs. Utility Powertech Limited Page 22 of 6851. I may state it here on the top of the various tables given in the plaint title which has been given is "Final R.A. Bills". This description in my view is meaningless. It could either be Running Account Bills or Final Bills. The same cannot be both. As the name itself would suggest Running Account Bills are part payments or advance payments made on account, subject to final adjustments being made at the stage of raising of final bills.
52. Clause 16 of "Conditions of Contract for Erection" appended with the work orders as annexure provides as to how running account bills and final bills were supposed to be raised. It is provided therein as under:
A. documents required with every RA bill: -
i) RA bill - 3 copies
ii) joint measurement sheet- 3 copies
iii) Reconciliation statement for all the materials (free issue items) issued by REL.
iv) Safety clearance certificate by REL.
v) Proof of PF deposited.
B. The documents required with Final bill: -
I) Final bill - 3 copies.
II) Final joint measurement sheet- 3 copies. III) Final reconciliation statement for all the material (free issue items) issued by REL.
IV) Documents as a proof of fulfilment of statutory requirements. V) Store clearance certificate from REL.
VI) As built drawings- 5 sets.
(There is a similar clause bearing the same number i.e 16 in "Conditions of Contract for Testing & Commissioning though it seems its last pages have not been filed)
53. In my opinion therefore just making reference to certain bills was not sufficient. Plaintiff along with it was also expected to refer to and elaborate as to when the said bills had been submitted to the defendant Kalyan Singh Vs. Utility Powertech Limited Page 23 of 68 and also if all the necessary conditions which were required to be fulfilled/documents required to be submitted had been submitted. It may also be added here that there is no clarity in the plaint if in respect of the said work orders any final bill had been raised or not if so whether the RA bills referred to in the plaint were also included in those final bills. If there had been no final bill raised in respect of the said work orders then also it was necessary to explain as to why such final bills had not been raised and also justify if the defendant was under an obligation to make payment as against the RA bills referred to in the plaint without having submitted the final bills or completion of work in respect of the work orders. There is no clarity in the plaint in this regard.
Did Plaintiff complete the work?
54. It is stated in para 3 of preliminary submissions of the written statement " That in view of the work orders, plaintiff started the work at the respective sites but was not able to complete the execution of work in accordance of with the terms of the work orders and several deficiencies found in the work done by the plaintiff." Reply of the Plaintiff in the replication filed is "The contents of para No.3 of the preliminary submissions are wrong, false and malafide and same are denied. It is wrong and denied that the plaintiff is not able to complete the work or there were deficiencies in the work done by the plaintiff. The entire work was completed to the satisfaction of the defendant except that the approval of the Electrical Inspector could not be obtained for which the plaintiff is not solely liable and responsible." In the cross-examination, however, plaintiff admitted that the work was not completed but attributed it to the non supply of material by the defendant, a stand which had never been taken before. He had deposed "I have not finished the work in the two months as per the terms and conditions of the agreement.
Kalyan Singh Vs. Utility Powertech Limited Page 24 of 68Vol. The work could not be completed due to non supply of material by defendant."
55. Thus it is absolutely clear that the Plaintiff had not completed the work and consequently it also appears that plaintiff had not raised any final bills. Present case thus is confined to some of the RA Bills which according to the Plaintiff had not been paid by the defendant.
Analysis of Bills etc filed in support of the claim
56. I am proceeding to analyse the Bills/ Measurement Sheets etc filed by the Plaintiff on record in support of its claim as below.
Ex PW1/6 - Bill No. B&S /HVDS/South/DLI /15/05 dated 26/02/2005-Rs.3,62,700.00 If the photocopy of the Bill can be accepted as secondary evidence
57. What has been filed on record is just a photocopy of a Bill bearing the said number. It was referred to in the affidavit filed in examination-in- chief as EX PW1/6.
58. In the cross-examination in respect of photocopy of the Bill it was deposed "Original Office copy of Bill ExPW1/6 is not filed on record neither the same has any receiving. (Vol. Original of the same was given to the defendant). It also bears endorsement of Mr. P.P. Singh and Sh. Vipin Sharma officers of defendant."
59. There was a notice given by the plaintiff during the course of the trial under Order 11 Rule 14 CPC with the prayer inter-alia seeking a direction to the defendant to produce all the bills and invoices submitted by the plaintiff with the defendant and also certified true copy of ledger Kalyan Singh Vs. Utility Powertech Limited Page 25 of 68 account of the plaintiff maintained by the defendant. It has been stated in the application as under:
"That on the last date of hearing the plaintiff was directed to bring with him the office copies of all the documents/said bills. However, with his best efforts the plaintiff could locate office copies of few bills only and the same are being brought by the plaintiff before this Hon'ble court.
Therefore, it would be in the fitness of things that if the defendants are directed to produce the original bills/invoices in their power and possession on record of the present case. That would also cut short the lengthy trial of the same."
60. I have not been able to locate any reply having been filed on behalf of the defendant to the said application. There is an order of the court dated 25.02. 2016 wherein it has been noted that reply to the said application had not filed by the defendant despite opportunities given. It was noted that last opportunity was being given to the plaintiff to file reply to the same. In the order sheet of the next date that is 21.03.2016 it is noted "in view of information and records supplied by defendant application stands satisfied and accordingly disposed of." I have not been able to find from the record as to what information on record which had been supplied by the defendant to the plaintiff. It certainly does not say that there was a direction for the plaintiff to produce any of those documents.
61. There are two questions involved here first if the photocopy by itself can be accepted as a secondary evidence in terms of section 63 of Kalyan Singh Vs. Utility Powertech Limited Page 26 of 68 the Act and second if it could be admitted as secondary evidence in terms of section 63 of the Evidence Act then was there proper foundation laid in terms of section 65 of the Evidence Act to make out a case that in the absence of best evidence (primary evidence) such a secondary evidence may be accepted.
62. Section 63 of the Evidence Act, which defines what constitutes secondary evidence, reads as under: Secondary evidence.--
Secondary evidence means and includes--
(1) Certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the parties who did not execute them;
(5) Oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
Kalyan Singh Vs. Utility Powertech Limited Page 27 of 68(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine- copy of the original, is secondary evidence of the original. (emphasis supplied)
63. If we closely examine clause (2) and (3) of the section, which are material for us in the light of illustrations, it would become clear that there is a great to deal of emphasis that there should be evidence to suggest that the copy had been compared with the original. Unless there is evidence to that effect that a copy proclaimed to be copy of the original has been compared with the original, it will not be accepted as secondary evidence, this is irrespective of the foundation being laid under section 65 of the evidence Act for the admittance of such a document as secondary evidence in the absence of original or primary evidence.
64. Case of a photocopy of a document is very peculiar. On the one hand photocopying machine by its process may produce an exact copy of what has gone under the scanner but at the same it offers great deal of opportunities to manipulate the printout by superimposing other documents or other material on the document which may be purported to be original photocopy of which may have been taken. Therefore, it would not be possible to take a photocopy as the copy of an original which is being proposed to be introduced as secondary evidence unless there is some other supporting material also produced to show that it is indeed photocopy of the original which is intended to be proved.
65. What Hon'ble High Court of Madras in Tamil Nadu Industrial Investment Corporation Ltd. V. N. Swaminathan & two others - 2002 SCC OnLine Mad 521- had observed in respect of photocopies of documents is worth taking note of. It is reads as under:
Kalyan Singh Vs. Utility Powertech Limited Page 28 of 68"Therefore, I do not find any illegality or irregularity in the order of the Court below in rejecting the petitioner's application for marking of xerox copies. As the rights of the parties are to be determined based on those relevant material documents, with reference to which the petitioner seeks permission of the Court by filing xerox copies, it is incumbent upon the trial Court to take extreme care and caution to see whether the petitioner was really placed in such an extreme situation, where it was not in a position to produce the originals in order to permit the petitioner to rely upon the xerox copies of those documents. It will have to be borne in mind that xerox copies will not always tally with the originals and we cannot rule out the possibility of any interpolation being made in the xerox copies. In other words, xerox copies being inferior in character vis-a-vis originals, the dispensation of filing of the originals can be considered only under exceptional circumstances and not as a matter of routine."
66. One may here make reference to the Judgment of the Hon'ble Madhya Pradesh in Aneeta Rajpoot v. Saraswati 2012 SCC OnLine MP 6801:
"11. Learned counsel for petitioner/defendant rightly submitted that secondary evidence would include categories mentioned in Clauses (1) to (5) to section
63. Learned counsel further rightly submitted that if Kalyan Singh Vs. Utility Powertech Limited Page 29 of 68 conditions embodied in section 65(a) and (b) of the Evidence Act exist, secondary evidence relating to document can be given. In support of his forceful submissions, learned counsel has placed reliance on two decisions of Supreme Court Nawab Singh (supra) and Smt. J. Yashoda (supra) and also of learned Single Bench of Rajasthan High Court Smt. Ratan Sharma (supra). But, to me, even then in the facts and circumstances of the present case the photocopy of the document of receipt cannot be admitted in secondary evidence. On bare perusal of the application under section 65 of the Evidence Act which has been rejected by the impugned order it is found that although it has been mentioned that under the false pretext the plaintiff and her husband obtained the original receipt from petitioner/defendant, but, nowhere it has been so stated in the application that the photocopy was made from the original and it was compared with original. The name of the person, who had obtained the photocopy by mechanical process has also not been mentioned in the application and further who compared the same with original his name is also not mentioned nor any affidavit in that regard has been filed.
12. So far as the applicability of Clause (2) of section 63 Evidence Act placed reliance by the learned Kalyan Singh Vs. Utility Powertech Limited Page 30 of 68 counsel for petitioner is concerned, according to me, it can be said that by some mechanical process a photocopy of original receipt was obtained, but, there cannot be any surety of its correctness and accuracy in absence of supporting material on record. Again in this regard there is no averment in the application that the photocopy which has been obtained by mechanical process was never tampered and it ensures its accuracy. Even if accurate photocopy is obtained by a mechanical process, it is a matter of common parlance that after inserting some words on a document which is already a photocopy and by interpolating the same, another photocopy of the said interpolated photocopy may be obtained and thus the accuracy of photocopy is always surrounded by dark clouds of doubt. In the present case since there is no averment in the application under section 65 that photocopy was compared with the original and it is an accurate photocopy of the original and further by not filing any affidavit of person who obtained the said photocopy is on record, it is difficult to hold the hallmark and authenticity and accuracy of the photocopy.
13. The decision of Nawab Singh (supra) placed reliance by the learned counsel for petitioner is not subject to context since it does not relate to Kalyan Singh Vs. Utility Powertech Limited Page 31 of 68 admissibility of a photocopy of the document to be admitted in secondary evidence. Similarly another decision of Smt. J. Yashoda (supra) is also not applicable because the photocopy was not compared with the original and therefore photocopy was not admitted as secondary evidence in that case (see para 7 of the said decision). According to me, not only the satisfaction of Clause (a) to section 65 is required, but simultaneously it is also required that the photocopy was compared with the original in terms of section 63(3) of the Evidence Act.
14. The Supreme Court in United India Assurance Co. Ltd. v. Anbari, (2000) 10 SCC 523 while dealing with the photocopy of licence of a driver expressed the view as under:--3. Learned counsel for the appellant submitted that the point regarding validity of the driver's licence was raised by the appellant before the Motor Accident Claims Tribunal and the Tribunal in accepting photocopy of a document purporting to be the driver's licence and recording a finding that the driver had a valid licence, has committed a grave error of law. He also submitted that the High Court has not dealt with the said contentions of the appellant and without giving any reason has dismissed the appeal. The Tribunal and also the High Court have failed to appreciate that production of a Kalyan Singh Vs. Utility Powertech Limited Page 32 of 68 photocopy was not sufficient to prove that the driver had a valid licence when the fact was challenged by the appellant and genuineness of the photocopy was not admitted by it.
Thus, the Apex Court has held that photocopy was not sufficient to prove that driver had a valid licence. By following the aforesaid decision of Supreme Court, Shri Justice Dipak Misra, J (as His Lordship then was) in Haji Mohd. Islam v. Asgar Ali, 2006(3) MPU 334 : AIR 2007 MP 157 has held that when a photocopy without any reasonable source has been filed, it is not permissible as secondary evidence. Yet there is another decision of this Court in W.P. No. 8224/2010, Sunil Kumar Sahu v. Smt. Awadharani decided on 31- 8-2010 wherein it has been held that photocopy of a document is not admissible as secondary evidence under section 65 of the Evidence Act.( emphasis supplied)
67. Therefore the question would be has plaintiff done enough to qualify the acceptance of the photocopy of the Bill Ex PW1/6 as the secondary evidence. That does not appear to be the case. There is not even an attempt to say how and under what circumstances the said copy had been obtained; was it a copy of the original or copy of copy. There are no other attendant facts brought on record which may convince this court that this photocopy was indeed a copy made from the original. In the absence of any such evidence being brought on record, I am of the view said photocopy does not qualify to be accepted as a secondary Kalyan Singh Vs. Utility Powertech Limited Page 33 of 68 evidence under section 63 of the evidence Act without even going into the question of if the requirement of section 65 of the Evidence Act, stands satisfied.
68. If now we look at section 65 (a)3 of the evidence Act, one may say reading this section with Order 11 Rule 14 4 of the Code and section 66 5 of the Evidence Act would show that if plaintiff were to be permitted to lead secondary evidence then it is required to establish-
Original is or appears to be in the possession of the defendant;
and After having served a notice as mentioned in section 66 of the Act defendant did not produce those documents.
69. There is a notice filed on record and referred to in the affidavit filed in evidence (Ex PW1/ 1). It appears that this notice was served on the defendant but was not replied to. In my opinion this notice would have acquired significance if the Plaintiff was also be able to show that indeed the said Bills copies of which have been filed on record were submitted to the defendant or the defendant is in possession of those bills. Here comes in the application filed by the Plaintiff under Order 11 Rule 14 CPC filed by the Plaintiff after the Court had directed the plaintiff 3
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--(a) When the original is shown or appears to be in the possession or power-- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it; ... .... .... .
4Order XI Rule 14. Production of documents.--It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
566. Rules as to notice to produce.-- Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his attorney or pleader such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:
Kalyan Singh Vs. Utility Powertech Limited Page 34 of 68appearing as witness PW1 on 19/08/2014 for producing office copies of the said documents. It is stated therein "Further chief deferred (for the) purpose of exhibiting the documents with direction to the witness to bring all office copies of the documents." In the application filed under Order 11 Rule 14 CPC, it is stated "That on the last date of hearing the plaintiff was directed to bring with him the office copies of all the documents /said bills. However, with his best efforts the plaintiff could locate office copies of a few bills only and the same are being brought by the plaintiff before this court." (There was though no such document filed with this application of after the filing of this application) It was followed by the following averment "Therefore it would be in the fitness of things that if the defendants are directed to produce the original bills/invoices in their power and possession on records of the present case. That would also cut short the lengthy trial of the same."
70. As has already been stated the there was no reply to this application had been filed and also that court had not passed any specific order directing the defendant to file any of those documents.
71. Plaintiff could have shown the said Bills etc being in possession of the defendant or appear to be in possession of the defendant by establishing that he had delivered the said Bills along with the other documents by showing some kind of receipt of the same having been given from the side of the defendant.
72. It was deposed by the witness in respect of this document "Original Office copy of this bill Ex PW1/6 is not filed on record neither the same has any receiving. (Vol. Original of the same was given to the defendant). It also bears the endorsement of Mr. P.P. Shah and Sh. Vipin Sharma Officers of the defendant." It is not disclosed who these persons Kalyan Singh Vs. Utility Powertech Limited Page 35 of 68 were. It is not if they were authorized to receive such a document. It is unusual that someone just accepts a document like without providing diary number or some entry to that effect in the records. In the left upper corner of the document there is a scribble. There is some initial on it.
Even with a magnifying glass you cannot make out who wrote and what is written on it. In my view only this much of statement with this kind of document by itself is grossly insufficient to convey that this bill was actually delivered to the Defendant Company. In my opinion therefore Plaintiff has also by having failed to prove that the defendant was in possession or appear to be possession of this document has failed to lay the foundation for the admission of this document as a secondary evidence.
73. One may thus conclude that this Bill Ex PW1/6, cannot be accepted as secondary evidence.
No payment just on the basis of production of Bill without showing if other compliances have been made
74. One may assume for the sake of argument plaintiff did send this Bill to the defendant, the question is, will plaintiff be able get the money against the said Bill without having to prove that all the compliances had been made with regard to the Bills being submitted for payment as required under clause 16 of Conditions of Contract, already reproduced above. There is absolutely no averment that before the said bill had been raised there had been a joint measurement, REL had given safety certificate or Plaintiff had obtained reconciliation statement from REL and also Plaintiff had deposited the Provident Fund for his employees. Plaintiff can have issue with the regard to the original bill being submitted to the defendant but there is no way he can say he would not Kalyan Singh Vs. Utility Powertech Limited Page 36 of 68 have the copies safety certificate or reconciliation statement issued by REL as they must have been delivered to him. If the plaintiff wanted he could have easily summoned these records form REL but he did not do so. Thus one may say just on the basis of the said Bill claimed to have been raised in the absence of other documents Plaintiff cannot claim to be entitled to receive payment from the defendant company on the basis of this Bill.
Applicability of above observation as to the other documents
75. As far as the other documents are concerned their position is no different from documents Ex PW1/6, for they are also photocopies and there is no pleading or averment that they had been compared with the originals so as to be able to say that the said documents qualify to be accepted as secondary evidence under section 63 of the Evidence Act. Same is the position when it comes to section 65 of the Evidence Act. It was necessary for the Plaintiff to have brought on record some evidence to prove that that the originals of the said documents had been delivered to the defendant to say that they had been in the possession of the defendant. A mere statement to that effect would be hardly sufficient to even meet the standard of proof of "appears to be in possession" to provide foundation under section 65 of the Evidence Act permitting admission of secondary evidence. Thus those documents too cannot be read in evidence.
Individual examination of all the said other documents
76. In addition to having made the said observations in general the other documents too cannot be accepted in evidence, I would discuss all those documents individually after being grouped on the basis of similarities.
Kalyan Singh Vs. Utility Powertech Limited Page 37 of 68Documents Ex PW1/7, ExPW1/9, ExPW1/22, Ex PW1/23, ExPW1/24, Ex PW1/25, Ex PW1/27, Ex PW28, Ex PW1/29, Ex PW1/36, ExPW1/39, Ex PW1/43, Ex PW1/48, ExPW1/49 and ExPW1/50
77. All these documents are photocopies of Running Bills stated to have been submitted by the Plaintiff to defendant. There is no stamp on any of the said documents of the defendant company or signature or anything else which may give any idea if the said documents had been delivered to the defendant by the plaintiff at any point of time. There is also no corresponding document filed in support of those bills like the joint measurement sheets,, reconciliation statement of all material issued by REL, safety certificate issued by REL or proof of PF being deposited by the Plaintiff in respect of the labour employed as was required under the contract for the payment of Bills.
78. It may be stated here that it is not sufficient to say that such and such Bill had been raised and submitted for payment. It is necessary to establish independently before the court that the plaintiff was indeed entitled to receive the payment having actually worked for the defendant in terms of the work order and discharged his part of the obligation.
"Joint Measurement Sheet" therefore assumes great significance in this regard. Similarly before claiming clearance of bills needless to say he would be expected to account for Goods which may have been supplied for works in terms of Reconciliation statement for all the materials issued. In the absence of the said documents, even if it is taken to be true that the Bills had been submitted, Plaintiff cannot recover any money as against the said bills.Kalyan Singh Vs. Utility Powertech Limited Page 38 of 68
Documents- Ex PW1/10, Ex PW1/18, Ex PW1/35, Ex PW1/40, Ex PW1/46
79. These Bills as per statement of the plaintiff bear signature of one M. A. Khan. There is no explanation who is this person, M.A. Khan. It is not clear in what capacity he had received these bills. All these Bills bear the dates 25/08/2005,25/08/2005,12/09/2005,25/08/05,25/08/2005 respectively but were delivered to him in the third week of April 2006 and first week of May,2006 (5/5/06, 5/5/06, 6/05/06, 22/04/06,22/04/06 respectively).There is no diary number no stamp of the defendant. It really does not inspire confidence to believe that these Bills had been delivered to the defendant Company. One may accordingly conclude that the Plaintiff has failed to prove that these had been delivered to the defendant.
80. There are no corresponding "Joint Measurement Sheets "or Reconciliation statements for all the materials or safety certificate issued by REL or proof of the payment of provident Fund filed, which were necessary for claiming payment from the defendant. In the absence of those documents, in my opinion Plaintiff cannot claim any money from the defendant.
Documents- Ex PW1/8, ExPW1/17, ExPW1/21, ExPW1/32, ExPW1/34, ExPW1/34, ExPW1/37, ExPW1/38, ExPW1/45, Ex PW1/51 and ExPW1/52
81. These documents are not bills but "Work Measurement" sheets.
These "Work Measurements Sheets" have not been signed by anyone except the plaintiff himself. There are no Bills filed corresponding to these Work Measurement sheets, which may have been raised on the defendants. If the plaintiff had not even raised the Bills related to the said Kalyan Singh Vs. Utility Powertech Limited Page 39 of 68 "work measurement sheets", how does he expect that he would paid just against "Work Measurement Sheets". It may also be noted that when one says "Work Measurement Sheet ", in terms of the Work Order it means "Joint Measurement Sheet" one which is signed from both the sides. One can find one such measurement sheet at page no. 40 of the document file which bears signatures from both the sides. Thus there is a serious question if these "Work Measurement sheet" would qualify as the "Joint Measurement Sheet" as per the Work Order. I am of the view, therefore, on the basis of these "Work Measurement Sheet" no payment can be recovered by the Plaintiff.
Documents- Ex PW1/9, Ex PW1/11, Ex PW1/ 16, Ex PW1/20, Ex PW1/31,PW1/32, Ex PW1/ 41, Ex PW1/42, Ex PW1/44
82. These documents are also so to say "Work Measurement Sheets".
They have been signed only from the Plaintiff by the Plaintiff. There is, however, a signature appears on these documents of one M.A. Khan as deposed by the plaintiff in his cross-examination. All these documents had been delivered to him between 27/04/2006 and 03/05/2006. Like, it has been stated above they do not look like "Joint Measurement Sheet"
from any angle. "Joint Measurement Sheet" means it should have been signed from both the side contemporaneously. There no document or evidence if in respect of the said "Work Measurement Sheets" any Bill had been raised by the Plaintiff. There is also no Reconciliation statement for all the materials (free issue items) issued by REL filed. In respect of Mr Khan except saying he is some employee of defendant, it has not been clarified who is this person M.A. Khan, was he authorized to receive such correspondence on behalf of the defendant. One may say in conclusion that just on the basis of these documents Plaintiff cannot recover any money from the defendant.Kalyan Singh Vs. Utility Powertech Limited Page 40 of 68 Document - Ex PW1/26
83. Plaintiff admitted in the cross-examination that so far as this Bill is concerned he has already received the payment.
Other submissions No other objection to payment except issuance of clearance certificate to be obtained from Electrical Inspector's clearance which was in the hands of Plaintiff; Admissions as to the receipt of bills by defendant- no need to prove Question of admission
84. It has been submitted from the side of the Plaintiff that from the side of the defendant there is no objection to the said bills being received except that according to the defendant said bills had not been verified by the "Electrical Inspector", which was something not in the hands of the plaintiff. Plaintiff did file a suit against the Electrical Inspector Govt. NCT of Delhi. Electrical Inspector had taken the stand that there was no privity of contract between the plaintiff and the Electrical Inspector and therefore not bound to issue the necessary clearance/certificate at the instance of the Plaintiff.
85. It has been added that the defendant in the written statement filed has made no specific denial to the bills raised by the plaintiff on the defendant.
86. It does appear from the written statement filed that there has not been a very specific denial in respect of each of the Bills raised but at the same time defendant has stated not at one but at various places to make a point that the Bills which had been raised by the Plaintiff were cumulatively of Rs. 94,57,174/- and not 1,42,38,326/-as claimed by the plaintiff. Out of this amount defendant has made a payment of Rs.
Kalyan Singh Vs. Utility Powertech Limited Page 41 of 6863,43,637/- [Rs.58,46,373 (through cheque) + Rs.2,08,490/- (deposited as TDS with the Govt. on behalf of Plaintiff)+ Rs.2,88,774 (deposited as Works contract Tax]. This amount is very different from the amount Plaintiff is stated to have received from the defendant which is, Rs.61,26,853/-. Therefore, defendant may not be directly denying those documents but it is clear that the defendant is also not admitting those documents.
87. Plaintiff has made reference to the bills in the paragraph no. 4 of the plaint and the same has been replied to by the defendant as follows:
"In reply to this para, the contents of the summary of the amount are denied as incorrect. It is denied as incorrect that the balance amount due and recoverable from the defendant is Rs.81,11,473/- as claimed. In fact, it is the plaintiff who has to pay to the defendant as stated in the preliminary submissions."
88. In addition to it, one may also make reference to the following paragraphs of the written statement of preliminary submissions:
"6.That the defendant received the total bills from the plaintiff worth a cumulative sum of Rs. 94, 57, 574/-, against the work done by them till the date of final measurement i.e. 25.07.2006.
7. That as stated above, the balance work was got to be executed at the risk and cost of the plaintiff by another contractor viz. M/s M.S. Electricals, the defendant had to incur a sum of Rs. 7, 67, 169/-. Another sum of Rs. for, Rs. 4, 78, 983/- was also deducted in terms of the contractual Kalyan Singh Vs. Utility Powertech Limited Page 42 of 68 provision, which mandates that the payment will be made as per the quantity of work verified and accepted by the client, REL (Reliance Energy Ltd) and the REL accepted the final bill after deducting the said amount of Rs. 4, 78, 983/- .
8. Thus the total amount of reduction is Rs.12, 46, 152/- (Rs. seven, 67, 169+ Rs. 4,78,983/-.
9. That the amount of actual work done by the plaintiff is thus calculated to Rs. 82, 11,022/- i.e. ( Rs. 94, 57, 174 - Rs.12, 46, 152)
10. That on the basis of the running bills submitted by the plaintiff the defendant paid to the plaintiff a cumulative sum of Rs.63,43,637/- ( i.e. Payment through cheque Rs.58,46,373/-, TDS deducted and deposited to Govt. authority on behalf of Plaintiff Rs.2,08,490/- and WCT deposited on behalf of the Plaintiff Rs.2,88,774/-) from time to time and the last payment was made on 07.02.2007 vide cheque no.011911 dated 07.02.2007. The summary of bills and payment statement prepared by the defendant may be referred to. The defendant carves leave of this Hon'ble Court to file vouchers/bills as and when the occasion arises.
11. That the defendant continued asking the plaintiff to return the materials which were to be returned to the defendant. Defendant wrote such letter vide letter dated 20.03.2008 to return the material but again as usual was Kalyan Singh Vs. Utility Powertech Limited Page 43 of 68 futile exercise on the part of the defendant as the plaintiff again turned its ear deaf(sic)."
89. Order 8 Rule 5 (1) of the Code reads as under:
Specific denial - Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission:
90. Therefore even if there is no point by point denial of bills but by implication one may read it as the denial of the liability by the defendant to make any payment to the plaintiff and also the bills filed on record. In any case proviso to Rule 5 (1) gives discretion to court that despite such an admission being made court may still ask the plaintiff to prove even those facts which may have been admitted. This is perfectly in consonance with section 58 of the Evidence Act. It reads:
Facts admitted need not be proved. --No fact need to be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings :Kalyan Singh Vs. Utility Powertech Limited Page 44 of 68
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
91. I am of the view once court had moved ahead with the framing of issues and plaintiff proceeded to lead evidence on all those facts, then in the given facts of the case, there is every reason to say that the court had exercised its discretion in having the evidence being led by plaintiff on the Bills referred to in the plaint. I am also of the view once the evidence has been led; the issue would be decided on the evidence which has come on record and not on the basis some admissions made for court cannot afford to have separate conclusions being reached one on the basis of evidence being lead and other on the basis of admissions made.
92. Thus once the court proceeded to take evidence on the facts stated in the plaint, the question that there has been no specific denial in respect of the bills, will lose its significance it may be having any.
No objection to claim except that there was no clearance certificate from Electrical Inspector
93. To say that the only objection defendant had as to the Bills was that there was no clearance certificate from Electrical Inspector on the face of it is not correct.
94. Plaintiff has filed documents selectively. If he had filed all the relevant documents things would have become far clearer. In the absence of complete set of documents there is always a danger of not reaching correct conclusions. Plaintiff has filed on record a letter received from the defendant dated 20th March 2008, ExPW1/55. This letter had been written in response to two previous letters of the defendant dated 13/03/2008 and Kalyan Singh Vs. Utility Powertech Limited Page 45 of 68 14/03/2008. These two letters have not been filed on record to understand the background of this reply. But just reading of this letter would also show that for making the payment there had been issue raised as to the "material reconciliation" which was one of the conditions of making payment. There was also an assurance given in this letter to provide all the assistance to the Plaintiff as may be necessary. There is no submission or averment if this "material conciliation" had been provided or not by the Plaintiff. This letter reads as under:
"Ref. No. UPL/HO/HVDS-LTMP/B&S/O2 20th March, 2008 M/s Bachil & Sons, D-6/29A, Dayalpur, Karawal Nagar, Delhi-94 Ref. No. i) your letter ref. no. B&S/UPL/REL/30/08 dated 13/03/08.
ii) your letter ref. no. B&S/UPL/REL/31/08 dated 14/03/08.
Dear Sir, This refers to your letter mentioned above. Points raised in your letter have been discussed are explained to you a number of times. Despite your repeated verbal assurance, no action has been taken from your end so far. Following long standing compliances are still to be done.
1. Material Reconciliation: It has been repeatedly explained that detailed record of material receipt consumed and the balance still lying in your possession has to be prepared and reconciled. From the available record, which has been shown to you, a huge quantity of various materials which have remained left-over are in your possession. Though, over the last one year you have given only empty assurances for returning the same, but no positive action taken from your end. Even physical status of the materials whether these at this late stage, are in acceptable working condition or not have not been done. The intention for inaction is not understood. This has created a huge liability.
2. As regards, your letter dated 13.03.08, regarding measurement of earthing is concerned, this is as per joint work of measurement done by representatives of REL, UPL and yourself. As such, there should not be any dispute after this joint checking.
We advise you to do the reconciliation work on priority so that final financial liability of payment can be worked out.
We assure you, we will provide all assistance with records available at our end and also assistance of your technical persons to so as to freeze the settlement of all account after pending actions have been taken from your end. Thanking you, Yours sincerely, For Utility Powertech Ltd."
Kalyan Singh Vs. Utility Powertech Limited Page 46 of 6895. In response to the legal notice dated 5 February 2010 Ex PW1/58, it appears there was a reply dated 23/02/2010 Ex PW1/56 sent from the side of the defendant Company (UPL), wherein, it appears, for the first time there is a reference made to " Electrical Inspector's approval". It is not that by this letter other issues had been given up. In this letter reference has also been made to the payment terms as referred in the work order related to certification of 'actual executed quantities' by REL. This letter reads as under:
"UPL/HVDS/09-10 Ph:0120-4512358
Feb 23, 2010 M: 09873390945
Fax: 0120-2531097
Email:[email protected]
M/s Bachil & Sons,
D-6/29A, Dayalpur,
Karawal Nagar, Delhi-99
Sub: HVDS/LTMS Jobs executed in Delhi by you
Dear Sirs,
From our records, we find that the above said job order could not be closed because of non compliance of the following action on your part:-
a) From our records, we observe that on the basis of your bills, you have been paid Rs. 18,92,504/- extra by us. You are requested to return this amount to UPL immediately to enable us to settle your accounts. (please refer para on page 1 of the work order on payment terms which reads as follows "The payment shall be made as per the actual executed quantities duly certified by REL and unit rates enclosed at annexure-II.")
b) Please refer to para 1. In on page 1 of annexure-I of the work order which reads as "The electrical inspector's approval for all the installation under the scope of this contract included in the scope of work of the contractor." In line with above you are requested to obtain clearance certificate from the concerned electrical inspectors of the respected area in which you have executed the jobs awarded to you.
You are requested to take an immediate and urgent action as above to enable us to close the work order finally.
Thanking you, Yours sincerely, (S.S. Jain) HOD-RLA & HVDS"
96. There is also another letter of NTPC dated 12/05/2010 written to the Plaintiff, Ex PW1/57, wherein there is reference to a grievance letter written by the plaintiff to the ministry which had been forwarded to NTPC and also reply to the legal notice having sent. This reply was prepared in consultation of the defendant company. Herein although there Kalyan Singh Vs. Utility Powertech Limited Page 47 of 68 is reference made to the 'Electrical Inspector's report' but that is not alone, it had also been stated that the plaintiff had not completed the work. This letter reads as under:
Corporate Centre "Ref. 01.SC PG3 12/05/2 010 Shri Kalyan Singh Bachhil M/s Bachil & Sons, 7, Shiv Mandir Market Kashimpur Power House, Aligarh Sub: Grievance regarding Non Payment of Rs. 8111473/-
Ref:MPOWER/P/2010/00227 Dear Sir, Please refer to your grievance dated 2nd December 2009 on the above subject which was forwarded to by the Ministry of Power through its letter dated 22 nd April, 2020.
The alleged matter was examined in consultation with the Utility Powertech Limited and after enquiry allegations were found to be incorrect. You have not given the actual fact of the case to the Ministry of Power. A legal notice in this regard was sent by you to the Utility Power Limited. The Company has already sent reply of your legal notice. You have not completed the scope of work for the work order given to you. Further, you have not submitted the Electrical Inspectors' clearance so far as required under the work order. As per the details available, recovery of Rs. 18,92,504/- is due from you. We hope that the above clarifies the matter. Thanking you.
Yours faithfully Sd/-
( A.K. RASTOGI) Co. Secretary & Director ( Grievances) CC: Shri J.S. Sehrawat Deputy Secretary, Ministry of Power, Govt. Of India, Cabin 3, Fourth Floor, Shram Shakti Bhawan, Rafi Marg, New Delhi-01"
97. Thus to say 'Electrical Inspector's Report 'was the only issue with regard to the payment to be made is factually not correct.
Kalyan Singh Vs. Utility Powertech Limited Page 48 of 6898. For a moment one may also look at the issue of Electrical Inspector's Report in the light of the terms and conditions of payment, written statement filed by Electrical Inspector in the suit which the Plaintiff had filed against him and also the relevant provisions of Electricity Act.
99. Clause 1.1g of Annexure 1 "DETAILED SCOPE OF WORK" of work order reads as under:
"The electrical inspector's approval for all the installations under the scope of contract is included in the scope of work of the contractor. However, all official charges towards Governmental approval/permits shall be reimbursed by UPL on actual basis against documentary evidence."
100. Rule 636 of Indian Electrical Rules, 1956 provides that a supplier of energy would approach the Electrical Inspector for approval to commence the supply of energy and would not do so unless there is an 6
63. Approval by Inspector- (1) Before making an application to the Inspector for permission 1[to commence or recommence supply after an installation has been disconnected for one year and above] at high or extra-high voltage to any person, the supplier shall ensure that the high or extra-high voltage electric supply lines or apparatus belonging to him are placed in position, properly joined and duly completed and examined. The supply of energy shall not be commenced by the supplier unless and until the Inspector is satisfied that the provisions of rules 65 to 69 both inclusive have been complied with and the approval in writing of the Inspector has been obtained by him:Provided that the supplier may energise the aforesaid electric supply lines or apparatus for the purpose of tests specified in rule 65.
(2) The owner of any high or extra-high voltage installation shall, before making application to the Inspector for approval of his installation or additions thereto, test every high or extra high voltage circuit or additions thereto, other than an overhead line, and satisfy himself that they withstand the application of the testing voltage set out in sub-rule(1) of rule 65 and shall duly record the results of such tests and forward them to the Inspector:
Provided that an Inspector may direct such owner to carry out such tests as he deems necessary or, if he thinks fit, accept the manufacturer' s certified tests in respect of any particular apparatus in place of the tests required by this sub-rule.
(3) The owner of any high or extra-high voltage installation who makes any additions or alterations to his installation shall not connect to the supply his apparatus or electric supply lines, comprising the said alterations or additions unless and until such alterations or additions have been approved in writing by the Inspector.Kalyan Singh Vs. Utility Powertech Limited Page 49 of 68
approval granted in writing by him, after having satisfied himself of the compliances of rules 65 to 69 made by the supplier. Supplier here means
- non-licensee or any other supplier of energy as rule 2 7 (ap) of the rules. Certainly plaintiff is not a "supplier".
101. Clause 1.1g of Annexure 1 only means all the installation as would be necessary for the approval of the Electrical Inspector would form part of the scope of the work; like as per 66 (a) "The conductors shall be enclosed in metal sheathing which shall be electrically continuous and connected with earth, and the conductivity of the metal sheathing shall be maintained and reasonable precautions taken where necessary to avoid corrosion of the sheathing:" or as per section 67[(1) "All non- current carrying metal parts associated with HV/EHV installation shall be effectively earthed to a grounding system or mat which will :- .... ... .. .". The question that he will have to bear all the expenses initially for the approval in no way means that he would apply for approval in his name. It only means that it would be the responsibility of the Plaintiff to get all objection removed as may be found by the Electrical Inspector before the approval is granted. It makes sense as well for it to be included in the scope of work. If it is not done then it would mean that a contractor may walk away by doing some work which may or may not find favour with the Electrical Inspector defeating the purpose of the entire exercise undertaken and agency may have to hire some other contractor to that extra work to make it compliant with electricity rules who may even have to undo what this contractor may have done. In the certified copy of written statement which has been filed by the Plaintiff himself in this case, which had been filed in the other case by Electrical 7 2 (ap)"supplier" means a licensee, a non-licensee or any other supplier of energy, including the Government;
Kalyan Singh Vs. Utility Powertech Limited Page 50 of 68Inspector, itself it has been stated that on inspection "number of discrepancies were observed in the electrical installations" and "were found violating the various provisions of the Rules". It has also been stated that in most of the cases it was found that the horizontal clearance between the high voltage cables and building was less than 1.2 meters not meeting the mandatory requirements. It was also found in some cases that the live parts of High Voltage transformers to be exposed and easily accessible from nearby buildings again in violation of the Rules. This had been intimated to BSES Yamuna Power Ltd by letters 06/09/2009 and asked them to remove the deficiencies. Written statement shows these reports relate to the colonies referred to in the suit.
102. Therefore, in my view Plaintiff cannot get away by saying that getting approval was not his business and therefore he should be paid irrespective of the fact that the work he done did not find or found favour with the Electrical Inspector for according Approval.
103. In any case the assertion of the plaintiff that there had been no dispute as to the Bills or completion of work except that the plaintiff had not obtained the certificate from Electrical Inspector is not correct.
Conclusion:
104. In view of the forgoing discussion and facts and circumstances of the case, I would conclude that the plaintiff has not been able to prove that he is entitled to recover from the defendant Rs.81,11,473/- with interest as prayed for. Issue is accordingly decided in favour of the defendant against the plaintiff.
Kalyan Singh Vs. Utility Powertech Limited Page 51 of 68Issue No.3 Relief:
105. In the light of the findings given on issue no.1 and 2, Plaintiff is not entitled to any relief. I am accordingly dismissing the suit of the plaintiff. No order as to costs.
Decree-sheet be prepared in terms of the judgment.
Announced on 20.06.2020 (Laxmi Kant Gaur)
(Through webex meeting ) District Judge (Commercial Court)
North-East, Karkardooma, Delhi
Judgment on counter-claim continued
Kalyan Singh Vs. Utility Powertech Limited Page 52 of 68
JUDGMENT ON COUNTER CLAIM
Findings on issues framed in the counter-claim:
I) Whether the CC is barred by limitation? OPP
II) Whether the CC is not signed, verified and filed by competent
person of Defendant? OPD
III) Whether the defendant is entitled to recover from the Plaintiff
the sum of Rs.18,92,504/- together with interest @18% p.a. till realisation? OPP IV) Relief Issue No.1 Whether the CC is barred by limitation? OPP
1. There is nothing specific in the Counter Claim to say that as to how the Counter Claim is being claimed to be within limitation. As has already been stated that this suit has been filed for the recovery of Rs.18,92,504/-. This is an amount which has been arrived at after adjusting the amount which is stated to be payable by the defendant to the plaintiff. According to the plaintiff, the total amount recoverable by the defendant from the plaintiff is Rs.37,59,889/-. The amount payable by the defendant to the plaintiff is Rs.18,67,385/-. Thus after deducting this amount of Rs. Rs.18,67,385/- from Rs.37,59,889, amount clamed in the Counter-claim of Rs.18,92,504/- has been arrived at.
2. As has already been discussed before the question of limitation is to be seen primarily from the angle as to how the case has been presented by the defendant.
3. In para no. 12 of the preliminary submissions and para no. 12 of the Counter Claim there is a bit of difference. But in essence the calculation given Kalyan Singh Vs. Utility Powertech Limited Page 53 of 68 for the amount stated to be recoverable from the Plaintiff by the Defendant is like this. In para of 12 of preliminary objections it is stated:
a. Liquidity damage of Work : Rs.58,184/-
(Recovery towards Watch and Ward
according to para 12 of counter claim)
b. Recover towards material liability : Rs.37,01,705/-
Total : Rs.37,59,889/-
Limitation for claiming "Liquidity damage of Work"/ Recovery towards "Watch and Ward" - Rs.58,184/-
4. In the affidavit filed in evidence of the witness RW1 Sh. Anil Kumar Tiwari has made reference to Liquidity damage of Work and not Recovery towards Watch and Ward . It is stated in para No 11 of the affidavit "The summary of bills and payment prepared by the defendants on the basis of the records available is exhibited as Ex R1/2 and Ex R1/3". In RW1/3 there is a reference to "Liquidity damage for defect work of Rs. 58,184". I, therefore, take it that the plaintiff is claiming "Rs.58,184/-" as damages for defective work.
5. In para no. 3 of the Counter-Claim it is stated:
"That in view of the work orders, plaintiff started the work at respective sites but was not able to complete the execution of the work in accordance with the terms of the work orders and several deficiencies found in the work done by the plaintiff. The defendant requested the plaintiff, vide letters dated 03.01.2005 & 08.01.2005 to rectify the defects and to complete the work as per the punch list enclosed therewith, within a week, falling which it was notified that the rectification would be done at his risk and cost. However, the Kalyan Singh Vs. Utility Powertech Limited Page 54 of 68 plaintiff did not pay heed to the defendant's request and defendant had to execute the balance work (besides rectifying the defects enumerated in the punch list) at the risk and cost of plaintiff through another contractor M/s M.S. Electricals. Sites were handed over to M/s REL in 2006."
6. According to the contract closing date of the contract was 31/07/2006. It is stated in para no. 5 of the claim:
" That the final joint measurement was to be carried out for the colonies allocated to the plaintiff, between 22/07/2006 & 25/07/2006 with a target date for closing of contracts as 31/07/2006."
7. It is the case of the defendant that the plaintiff did not complete the work and therefore had to be handed over to other contractor M/s M.S. Electricals and paid this contractor Rs.7,67,169/-. It is stated in para 7 of the counterclaim:
"That as stated above, the balance work was to be executed at the risk and cost of the plaintiff by another contractor viz. M/s M.S. Electricals, the defendant had to incur a sum of Rs. 767,169."
8. It is further stated in para 9 of the counter claim:
"That the amount of actual work done by the plaintiff thus is calculated to Rs.82,11,022/- i.e ( Rs. 94, 57, 174 - Rs. 12, 46, 152). That on the basis of running bills submitted by the plaintiff a cumulative sum of ₹ 63,43, 637/- from time to time and the last payment in this regard was made on 07.02 .2007."Kalyan Singh Vs. Utility Powertech Limited Page 55 of 68
9. If I put together everything which has been stated then one may say, there were letters written in 2005 by the defendant asking the plaintiff to remove the defects, which he did not do. The contract was closed on 31/07/2006. Thereafter the defendants had engaged another contractor for executing the balance work and also. Last payment of the running bills was made by the defendant to the plaintiff on 07.02.2007.
10. I am of the view once the contract came to an end on 31/07/2006 defendant had acquired the right to claim money as against the defective work or at least after it had made payment to the new contractor. There is nothing said as to when this payment was made. It was for the defendant to have placed this fact on record as to when rectification work carried and how much it paid for it. Defendant claims to have made last payment to the plaintiff on 07.02.2007 and it had adjusted the money paid to the new contractor in working out the payment due to the plaintiff. In the best scenario for the defendant one may say by 07/02/2007 defendant knew precisely how much money is to be recovered from the plaintiff for defects left by the plaintiff and rectified by the new contractor and paid for and therefore one may assume this to be the date for the commencement of limitation.
11. It has already been discussed before (M/s Decor India (P) Ltd V. Delhi Stock Exchange) that the accrual of cause of action cannot be postponed by writing reminders or sending reminders. It has also been discussed that if it is accepted that refusal itself would govern the period of limitation then by that analogy if such a refusal is not done for a considerable period of time say for 4-5 years, then the same would not extend the period of limitation. Therefore just by a sending a notice dated 15/10/11 Ex PW1/59, defendant could not have postponed the cause of action to recover the money from the plaintiff. Defendant had filed the counterclaim on 20/11/2012. Clearly this claim of the defendant of Rs.58,184/- is time barred.
Kalyan Singh Vs. Utility Powertech Limited Page 56 of 6812. Before moving on the other component of the claim, I would like touch upon the recovery of this money of Rs.58,184/- under the head "Recovery of Watch Ward", which I have already stated before, has no bases. Though this is a phrase used both in the Counter-Claim and also in the legal notice sent Ex PW1/59 but not repeated in the affidavit filed in evidence and also document RW1/3 filed giving the details of payment recoverable making no reference to "Watch and Ward" There is, however, a line of cross-examination in the testimony of the witness PW1 Sh. Kalyan Singh Plaintiff and also in the cross- examination of RW1 Sh. Anil Kumar Tiwari in this direction. It reads like this:
Extract from the testimony of PW1 Sh. Kalyan Singh -
"I have returned all materials issued to me after completion of the work. However I have not filed any record to show that I have returned all the material. Vol. some of the material was stolen which was not in my possession as those material were installed at the site. Further the theft has taken place approximately after one year of installation.
Q. whether the security was provided at the store by you? Ans. Yes.
Q. Have you filed the FIR immediately after the theft? Ans. The complaint for FIR was filed by the defendant, thereafter I filed an FIR for the material stolen. However, I have not placed the copy of FIR on record. The FIR was lodged during 2006 - 2008. The Ex PW1/55 dt. 20.03.08 was received after the registration of the FIR. However I have not made representation to this letter."
Extract from the testimony of RW1 - Sh. Anil Kumar Tiwari "Sum of Rs. 58, 184/- has been claimed by as against liquidity damage of work. There must be some deficiencies in the services of the plaintiff that is why the same has been claimed. I am not confirm under which particular head this claim has been raised. There was a quantity under the Watch and Ward head and the amount of Rs. 58, 184/- has Kalyan Singh Vs. Utility Powertech Limited Page 57 of 68 been claimed against the same as mentioned in para No. 12 of the counterclaim filed by the company."
13. All this takes us nowhere. There is no averment in the plaint or indication in any of the documents filed that this money is being claimed for some theft having being committed because of the failure of "Watch and Ward". Burden to prove this was issue on the defendant but has completely failed to establish it. One cannot look at this angle of "theft" in the absence of any averment to that effect.
14. I would accordingly conclude that the claim which has been filed of Rs.58,184/- is barred by limitation.
Recovery of material liability- Rs.37,01,705/-
15. Though no bases have been given as to how this figure of Rs.37,01,705/- has been arrived at to be recovered as "Recovery of material liability" and it has not been clearly spelt out what it means but it appears to be the amount claimed for the material supplied by the defendant to the plaintiff for carrying out the work but not accounted for. This becomes evident from the following.
Para 11 of the preliminary submissions reads as under:
"That the defendant continued asking the plaintiff to return the materials which were to be returned to the defendant. Defendant wrote such letter vide letter dated 20.03.2008 to return the material but again as usual was futile exercise on the part of the defendant as the plaintiff again turned its ear deaf(sic)."
16. It is the same thing which has been repeated in the counter claim and also in the affidavit.
17. It is stated in para 6 of the legal notice dated 15/10/11 sent from the side of the defendant to the plaintiff for the recovery of the said amount in respect of Kalyan Singh Vs. Utility Powertech Limited Page 58 of 68 this payment like this: "That after finalization of work according to you, our client came to know that a sum of Rs.37,01,705/- is recoverable from you, on account of recovery of balance materials. The said materials were issued at the time of execution of the works." (Emphasis supplied)
18. Now let us look at letter of 20/03/2008, stated to have been sent by the plaintiff. It has already been reproduced above but for reference it is being reproduced here again.
"Ref. No. UPL/HO/HVDS-LTMP/B&S/O2 20th March, 2008 M/s Bachil & Sons, D-6/29A, Dayalpur, Karawal Nagar, Delhi-94 Ref. No. i) your letter ref. no. B&S/UPL/REL/30/08 dated 13/03/08.
ii) your letter ref. no. B&S/UPL/REL/31/08 dated 14/03/08.
Dear Sir, This refers to your letter mentioned above. Points raised in your letter have been discussed are explained to you a number of times. Despite your repeated verbal assurance, no action has been taken from your end so far. Following long standing compliances are still to be done.
1. Material Reconciliation: It has been repeatedly explained that detailed record of material receipt consumed and the balance still lying in your possession has to be prepared and reconciled. From the available record, which has been shown to you, a huge quantity of various materials which have remained left-over are in your possession. Though, over the last one year you have given only empty assurances for returning the same, but no positive action taken from your end. Even physical status of the materials whether these at this late stage, are in acceptable working condition or not have not been done. The intention for inaction is not understood. This has created a huge liability.
2. As regards, your letter dated 13.03.08, regarding measurement of earthing is concerned, this is as per joint work of measurement done by representatives of REL, UPL and yourself. As such, there should not be any dispute after this joint checking.
Kalyan Singh Vs. Utility Powertech Limited Page 59 of 68We advise you to do the reconciliation work on priority so that final financial liability of payment can be worked out.
We assure you, we will provide all assistance with records available at our end and also assistance of your technical persons to so as to freeze the settlement of all account after pending actions have been taken from your end. Thanking you, Yours sincerely, For Utility Powertech Ltd."
19. What does it show? Plaintiff was in possession of huge quantity of various materials for more than a year. Plaintiff had been giving assurances but not returning the said material and this had resulted into a huge liability for the plaintiff. It is absolutely clear when the defendant says in the counter claim "Recovery towards material liability" of Rs. Rs.37,01,705/-, it means the material which has been referred to in the letter dated 20/03/2008 (Ex. PW1/ 55) and reflected in the statement filed of payment status of the plaintiff (RW1/3) as "Material Shortage Recovery".
20. It has already been discussed before limitation could not have been postponed by sending notice in 2011, Ex PW1/59, after almost three and half of waiting for the claim to be denied by the plaintiff. The defendant therefore cannot claim the limitation to run from the date plaintiff denied its claim by his reply dated 10.12.2011 (Ex PW1/60) to legal notice dated 15.10.2011 (Ex PW1/59) sent almost three and a half year of sending the letter of 20/03/2008 (Ex PW1/55), demanding the return of the material in the possession of the plaintiff. In my opinion limitation would start to run from 20/03/2008 or a reasonable time thereafter let us says two months by the time plaintiff should have submitted material reconciliation. In terms of Article 113 of the Schedule of the Limitation Act, suit should have been filed within three years thereafter for the recovery of this amount but Counter Claim was filed on 20/11/12. Clearly the claim on account of "Recover towards material liability of Rs. Rs.37,01,705/- ", is barred by limiation.
Kalyan Singh Vs. Utility Powertech Limited Page 60 of 68Conclusion:
21. In the light of the above discussion it is concluded that the suit filed by the plaintiff is barred by limitation and liable to be dismissed on this account.
22. Issue is accordingly decided in favour of the plaintiff and against the defendant/counter claimant.
Issue No.2 Whether the CC is not signed, verified and filed by competent person of Defendant? OPD
23. This suit has been signed and instituted by Sh. C.P. Singh Addl. General Manager of the defendant company. There is an affidavit filed along with the plaint stating these facts. There is also a Letter of Authorization filed at the time of filing of the plaint, signed by the Chief Executive of the Company in favour of Sh. C.P. Singh authorizing him to appear and conduct including depose, swear affidavit, stand as witness etc in the present case.
24. He had, however, not appeared in the Court but one Sh. Anil Kumar Tiwari Deputy Manger of Defendant Company had appeared in Court as witness and filed his affidavit in evidence along with a letter of authority ExRW1/1, similar to the one issued in favour of Sh. C.P. Singh.
25. One may here make reference to the Judgment of the Hon'ble Supreme Court in Union Bank of India v. Naresh Kumar and others- (1996) 6 SCC 660.
"It cannot be disputed that a company like the appellant can sue and be sued in its own name. Under Order 6 Rule 14 of the Code of Civil Procedure a pleading is required to be signed by the party and its pleader, if any. As a company is a juristic entity it is obvious that some person has to sign the pleadings on behalf of the company. Order 29 Rule 1 of the Code of Civil Procedure, Kalyan Singh Vs. Utility Powertech Limited Page 61 of 68 therefore, provides that in a suit by or against a corporation the Secretary or any Director or other Principal officer of the corporation who is able to depose to the facts of the case might sign and verify on behalf of the company. Reading Order 6 Rule 14 together with Order 29 Rule 1 of the Code of Civil Procedure it would appear that even in the absence of any formal letter of authority or power of attorney having been executed a person referred to in Rule 1 of Order 29 can, by virtue of the office which he holds, sign and verify the pleadings on behalf of the corporation. In addition thereto and de hors Order 29 Rule 1 of the Code of Civil Procedure, as a company is a juristic entity, it can duly authorise any person to sign the plaint or the written statement on its behalf and this would be regarded as sufficient compliance with the provisions of Order 6 Rule 14 of the Code of Civil Procedure. A person may be expressly authorised to sign the pleadings on behalf of the company, for example by the Board of Directors passing a resolution to that effect or by a power of attorney being executed in favour of any individual. In absence thereof and in cases where pleadings have been signed by one of it's officers a Corporation can ratify the said action of it's officer in signing the pleadings. Such ratification can be express or implied. The Court can, on the basis of the evidence on record, and after taking all the circumstances of the case, specially with regard to the conduct of the trial, come to the conclusion that the corporation had ratified the act of signing of the pleading by it's officer." ( emphasis supplied)
26. It is clear from the judgment even where there is no formal authorization for an officer to sign and verify the pleading, it can be ratified by the subsequent acts of the Company and the same need not be express. It can be implied. This suit was filed way back in 2012 and since then this case is being contested on Kalyan Singh Vs. Utility Powertech Limited Page 62 of 68 behalf of the company on the basis of same written statement /counter claimed filed. Defendant Company authorised one of its other officer RW1 to depose on the same facts stated in the plaint. There is nothing to doubt that the subsequent conduct of the company would show that it stands by what has been stated in the written statement/counter claim. Therefore, one may say even in the absence of formal proof of the letter of authority filed of Sh. C.P. Singh Additional General Manger of the Company it can be said that the he was competent to sign and verify the Counter Claim on behalf of the defendant company.
27. In the light of above discussion one may conclude that the counter claim had been signed and verifed by a competent person. Issue is accordingly decided in favour of the defendant and against the plaintiff.
Issue No.3 Whether the defendant is entitled to recover from the Plaintiff the sum of Rs.18,92,504/- together with interest @18% p.a. till realisation? OPP
28. It has already been discussed before how this figure of Rs.18,92,504 has been arrived at. One may restate it here again as below:
In para no. 12 of preliminary submissions /para 12 of the Counter claim it has been stated so:
a. Liquidity damage of Work ( sic) :Rs.58,184/-
(Recovery towards Watch and Ward
according to para 12 of counter claim)
b. Recover towards material liability : Rs.37,01,705/-
Total : Rs.37,59,889/-
c. (-) Amount payable as per the bills : Rs.18,67,385/-
submitted by the Plaintiff to the defendant
(Not to be confused with the bills relied upon by the Plaintiff in the present case) d. Amount recoverable [ (c) - (d)] :Rs.18,92,504/-Kalyan Singh Vs. Utility Powertech Limited Page 63 of 68
29. Therefore Defendant is required to show that defendant is entitled to recover Rs.58,184/- Liquidity damages of work / towards "Watch and Ward"
and also Rs.37,01,705 as liability for the material supplied. Let us look at both the claims one by one.
Liquidated Damages of work /Recovery towards Watch and Ward- Rs.58,184/-
30. To some extent this issue has already been discussed above. As has already been noted that it is stated in para No 11 of the affidavit "The summary of bills and payment prepared by the defendants on the basis of the records available is exhibited as Ex R1/2 and Ex R1/3". In RW1/3 there is a reference to "Liquidity damage for defect work of Rs. 58,184".
31. If one were to describe Ex RW1/3 as ledger account of the of the Plaintiff as maintained by the defendant described as " Payment Status of Bachil & Sons", as it provides the details of the payment made, payment due and the payment which is recoverable by the defendant from the Plaintiff; it may be stated that though such a statement can be relevant under section 34 of the evidence but is not sufficient to charge any person with liability. Section 34 of the Evidence Act, reads as under:
34. Entries in books of account when relevant. -- [Entries in books of account, including those maintained in an electronic from], regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.
32. Defendant has not cared to place on record any document which may show as to when such defects in the work had been discovered and how this figure of Rs. 58,184/- has been arrived at. When witness RW1 Sh. Anil Kumar Tiwari was questioned about it, this what he had said:
Kalyan Singh Vs. Utility Powertech Limited Page 64 of 68"Sum of Rs.58,184/- has been claimed by us against liquidity damage of work. There must be some deficiencies in the services of the Plaintiff that is why same has been claimed. I am not confirm under which particular head this claim has been raised (sic). There was a quantity under Watch and Ward head and the amount of Rs.58,184/- has been claimed against the same as mentioned in para12 of the counter claim filed by our Company."
33. It is clear witness too had a confusion under which head the said amount was sought to being covered. RW1/3 described it as an amount being claimed for the defective work and counter claim described it as damages towards "Watch and Ward" indicting some loss which may have occurred as result failure of " Watch and Ward", like commission of theft, which has been referred before.
34. Assuming for a moment it is related to some theft -as it has come in the cross-examination PW1, already referred above- then also it was necessary to have given particulars as to when this theft had taken place, what were the goods lost and what was the value of such goods lost. There is neither any pleading nor evidence to that effect. Defendant has clearly failed to prove that it had any loss of Rs. 58,184/- which could be attributed to the Plaintiff. In other words Defendant has failed to prove that it is entitled to recover the said amount from the Plaintiff.
Recovery towards material liability - Rs.37,01,705/-
35. This issue has also been touched above. It has been already been observed when the defendant says in the counter claim "Recovery towards material liability" of Rs. Rs.37,01,705/-, it means the material which has been Kalyan Singh Vs. Utility Powertech Limited Page 65 of 68 referred to in the letter 20/03/2008 (Ex. PW1/ 55) and reflected in the RW1/3, statement filed of 'payment status of the plaintiff' as "Material Shortage Recovery". In Ex PW1/55, it has been stated like this:
"From the available record, which has been shown to you, huge quantities of various materials which have remained left-over are in your possession. Though, over the last one year you have given only empty assurances for returning the same, but no positive action taken from your end. Even physical status of the materials whether these at this late stage, are in acceptable working condition or not have not been done."
36. Here again in the counter claim there are no details given of such materials and as to how this figure of Rs.37,01,705/- has been arrived at. In the cross-examination when the witness RW1 Sh. Anil Kumar Tiwari was asked about it. his reply was " No proof has been filed in respect of material supplied by ( sic-to) the plaintiff against which a claim of Rs.37,01,705/- has been claimed."
37. There is no admission either from the side of the plaintiff in this respect. In the cross-examination he had stated "I was carrying on work as per the receipt of the materials. Sometimes I use to utilize the material supplied by the defendant for one colony to other colony also. After completion of work unutilised material was deposited by me with the defendant against receipt. I have not placed any receipt on record. I do not know whether any reply was given by me to the letter Ex PW1/55 dated 20.3.08. I have proof of the deposit Kalyan Singh Vs. Utility Powertech Limited Page 66 of 68 of the unutilized material. The same was deposited with the company for procuring the no dues certificate. However, I have not placed any such document to prove my averment on record of present case."
38. He had further stated in the later part his testimony:
"I have returned all the material issued to me after completion of the work. However, I have not filed on record to show that I have returned all the material."
39. It is important to note that the burden to prove this issue was on the defendant. It would no matter much if the plaintiff says that he had returned material but has no proof of it, for the reason it was for the defendant to provide precise details of the material supplied and on which dates and how this figure of Rs.37,01,705/- has been arrived at. In the absence of any such evidence in my view defendant cannot be said to have proved that it is entitled to recover Rs.37,01,705 from the Plaintiff. It may added here, like it has been stated before under section 34 of the Evidence Act " Payment Status of Bachil & Sons" Ex RW1/3 filed on record can be considered to be relevant but not sufficient to prove that such an amount is due to be paid by the Plaintiff to the defendant.
Conclusion:
40. In the light of forgoing to discussion it is concluded that the defendant has failed to prove that it is entitled to recover Rs.58,184/- or Rs.37,59,889/- from the plaintiff, consequent Rs. 18,92,504/- as stated to be due against the plaintiff after adjusting Rs. 18,67,385/-stated to be payable by the defendant to the plaintiff. I am accordingly deciding this issue in favour of the Plaintiff and against the defendant.
Kalyan Singh Vs. Utility Powertech Limited Page 67 of 68 Issue No. 4Relief
41. In view of the findings given on issue No.1 and 3, Counter Claim filed by the defendant is liable to be dismissed. I am accordingly dismissing the same. No order as to costs.
Decree-sheet be prepared in terms of this Judgment.
Announced on 20.06.2020 (Laxmi Kant Gaur)
(Through webex meeting) District Judge (Commercial Court)
North-East, Karkardooma, Delhi
Kalyan Singh Vs. Utility Powertech Limited Page 68 of 68