Bangalore District Court
M/S. Polynate Foams Pvt.Ltd vs M/S Gdr Mektek Pvt Ltd on 2 April, 2018
[C.R.P. 67] Govt. of Karnataka
Form No.9 (Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
IN THE COURT OF THE XIV ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.28]
Present: Sri. G.A. MULIMANI.,M.A. LL.B. (Spl.)
XIV ADDL. CITY CIVIL JUDGE
Dated this the 2nd day of April, 2018
O.S.No.6418/2012
Plaintiff : M/s. Polynate Foams Pvt.Ltd.
# 102/1, 10th cross,
Pete Channappa Industrial
Estate, Magadi main Road,
Kamakshipalya,
Bangalore-560 079
Representative by its Managing
Director Mr.U.Haridas,
Aged about 60 years,
S/o Late V.D.Menon,
Also at No.361, Shantham,
AMC Main Road,
Kaval Byrasandra,
R.T.Nagar, Bangalore-560032
(By Sri.M.A.Sebastian,
Advocate)
- Vs -
Defendant : M/s GDR MEKTEK PVT LTD
No.57, SJB College Road,
BEML Layout, 7th Stage,
1st Phase, 2nd Main Road,
2 O.S.No.6418/2012
5th Cross, RVC Post,
Mylasandra,
Bangalore-569 059
R/by its Managing Director
(By Sri.H.G.N., Advocate)
Date of institution
of the suit : 06.09.2012
Nature of the suit :
[suit on pronote, suit
for declaration and
possession, suit
for injunction] : Recovery of Money
Date of the commencement
of recording of the evidence: 22.07.2014
Date on which the
Judgment was pronounced : 02.04.2018
Year/s Month/s Day/s
Total Duration 05 06 05
JUDGMENT
The plaintiff has filed this suit against the defendant for recovery of sum of Rs.3,53,938/- with interest at the rate of 24% per annum from the date of the suit till realization and such other reliefs as court deem fit to be grant.
3 O.S.No.6418/20122. The brief facts of the plaintiff's case are that :
The plaintiff is a registered small scale industry engaged in the business of manufacturing of supply of industrial produce like UREFOAM PIPE SECTIONS and PUFF PIPE SECTIONS etc. The defendant has placed purchase order on different dates for supply of the products of the company, the name of the plaintiff has recommended by ISRO for executing the work with materials to the defendant. The defendant has taken up a project with ISRO and for the said project the defendant has placed the order for the materials of PUFF Slabs of 70 Kg/density in 50mm thickness for the PUFF-IN-SU-TU insulation for the container assemblies, the plaintiff vide E-mail dated 05.02.2011 offered special discount of 5% on two items.
The plaintiff vide their further E-mail dated 23.05.2011 placed to the revised offer of special discounted price and the defendant confirmed the purchase order for Rs.4,40,000/- for the PUFF filling and cladding as per quotation. Since the supply of PUFF slabs attracts payment of excise duty and VAT plaintiff vide their E-Mail dated 08.07.2011 sought for the bifurcation of the order for supply separately and insulations and labour charges separately by enclosing two sample per forma invoices.
4 O.S.No.6418/2012The defendant has placed orders for the execution of work for a sum of Rs.1,61,750/- through the purchase order No.5120-01-13A/2011-12, dated 30.12.2011 and materials for a sum of Rs.2,78,250/- through the purchase order No.5120-01/13B/2011-12 dated 30.12.2011. Plaintiff vide E-mail dated 6.01.2012 informed the defendant that, if the project is further delayed for the site clearance the plaintiff will not able to hold on the price agreed due to the basic raw materials increase and other incidental expenses. Therefore the defendant through E-mail dated 20.01.2012 informed the plaintiff that they are amending the purchase order accepting the amendment for terms of payment and amended purchase order for materials for a sum of Rs.1,95,180/- through the revised purchase order No.5120- 01-13A1/2011-12 dated 21.01.2012 and materials for a sum of Rs.2,78,250/- through revised purchase order No.5120-01/13B1/2011-12, dated 21.01.2012. The plaintiff has supplied the materials for a sum of Rs.2,54,096/- vide their invoice bearing No.0229/11-12, TO53/11-12 and TO54/11-12, all dated 02.02.2012 and the materials for a total sum of Rs.2,29,612/- vide their invoices bearing No.0260/11-12, TO60/11-12 and TO61/11-12, all dated 16.03.2012 and materials for a sum of Rs.32,558/ vide invoice No.T005/12-13 dated 27.04.2012.
5 O.S.No.6418/20123. Further, it is the case of the plaintiff that the original specification was altered by the defendant as per the instructions of ISRO which have incurred additional expenditure for labour on account of the change in specifications. The defendant has agreed to pay the additional cost incurred for the rework as per the e-mail, dated 19.03.2012, 12.04.2012 and 13.04.2012. Plaintiff had supplied materials and executed the works for a total sum of Rs.5,41,016/- out of which the defendant has paid a sum of Rs.1,32,000/- on 16.06.2011 and a further sum of Rs.1,22,096/- on 12.03.2012 totally amounting to Rs.2,54,096/- and a sum of Rs.2,86,920/- remains outstanding. Inspite of repeated requests and demand the defendant did not come forward to pay the balance due amount. However, the plaintiff has claimed only simple interest on the outstanding amount at the rate of 24% per annum and hence the defendant is liable to pay sum of Rs.3,53,938/-. Hence has filed this suit.
4. In pursuance of the summons the defendant appeared through his counsel and filed detail written statement denying all the allegations as false and suit is liable to be dismissed in limine as not maintainable. He 6 O.S.No.6418/2012 has admits that paragraph 1 to 3 of the plaint, and the defendant is entitled to claim damages with simple interest. The plaintiff was introduced by the ISRO for doing the container work as informed by the ISRO to the defendant and also the plaintiff introduced himself earlier to this as an expert having full knowledge of PUFF and his experience in other Government projects. The plaintiff company does the container work as specified by the ISRO, the defendant as such issued a purchase order. The minutes of the meeting was held on 16-02-2012 at GDR Mektek Ltd with the plaintiff and ISRO jointly for puff filling, cladding work as ordered by PO No.1 and PO No.2. After issuing the purchase order to the plaintiff, the plaintiff taken up the work order as specified in the document No.2 and 3 at the time of defendant made the advance payment of 30% as per PO No.1 and PO No.2 on 14.06.2011. the plaintiff came to the defendant company for doing the work order on 02.02.2012 for the two containers which were ready in the plant of the defendant. In the container, the plaintiff work was pour chemical PUFF leveled to the GFRP sheet level, and the cladding work, but the plaintiff did not achieve the quality requirements as specified and discussed during meetings. During the inspection by the project in charge officer, the two container puffing work made by the 7 O.S.No.6418/2012 plaintiff was rejected. In this regard the project officer issued E-mail to the defendant on 04.04.2012 stating that the poor workmanship of puff work and informed them for rejection of the same. Plaintiff later could not achieve the quality which was discussed in the minutes of the meeting. Hence the plaintiff himself introduced the Priya Enterprises for doing the PUFF leveling. Priya Enterprises reworked the Puff work on container in this regard. The defendant having additional burden to do the puff work leveling the puff container for a sum of Rs.1,29,125/-, the plaintiff even refused to do the lading work for which he had agreed during the quotation stage, after continuous search the defendant himself found Elite insulation and trading services for cladding two containers and puff leveling one container. The defendant having incurred loss due to the negligence/irreparable of the plaintiff, the defendant made the payment to the Elite insulation for sum of Rs.1,30,472/- towards the work of the puff leveling on one container and cladding two container and this work completed by the Elite insulation within one month (28.05.2012 to 05.07.2012 . The defendant issued invoice along with the delivery challan and the payment shall be paid within 30 days to the invoice holder but in this case the part payment made after lapse of 2 ½ months and also the ISSRO 8 O.S.No.6418/2012 withhold the amount of Rs.8,94,288/- till today, and inspite of several requests and visits this defendant having a minimum estimated total loss of Rs.16,50,000/- and further loss still estimating. Due to non performance of purchase order work as agreed by the plaintiff like puff work, cladding work as per the terms and conditions and joint meeting note the plaintiff agreed to do the work as ordered in the purchase order. As such this defendant made payment against 30% to the plaintiff, subject to terms and conditions of the purchase order. The plaintiff verified the terms and conditions of the purchase order. The plaintiff verified the terms and conditions issued by the purchase order by this defendant like not maintaining the time limit and not performing the standard procedure, as such this defendant having heavy loss, the plaintiff was entitled only to the extent of work done. The defendant has already made the payment to the plaintiff for a sum of Rs.2,54,096/- not more than that plaintiff is entitled. Hence, he prayed for dismiss the suit.
5. On the basis of the above materials, pleadings and documents, the following issues framed.
1. Whether the plaintiff proves that the defendant is due for a sum of Rs.2,86,920/- towards supply of PUFF slabs of 70 kg/Density in 50 mm 9 O.S.No.6418/2012 thickness for the puff insulation for the container assemblies?
2. Whether the plaintiff is entitled for the relief as sought for?
3. What order?
6. In order to prove these issues, the Account Manager of the plaintiff company is examined as P.W.1 and got marked documents Ex.P1 to P41 and Managing Director of the plaintiff company is examined as P.W.2 and no document got marked as exhibits and closed his side.
7. On the other hand the P.A. holder of defendant is examined as D.W.1 and got marked 15 documents as Ex.D.1 to D15 and closed his side. Hence defendant evidence is closed and case is posted for arguments.
8. Heard the arguments on both sides and case is posted for judgment today.
9. My answers to the above points are as under;
Issue No.1 : In the negative,
Issue No.2 : In the negative,
10 O.S.No.6418/2012
Issue No.3 : As per final order
for the following;
REASONS
10. ISSUE NO.1 & 2:- These points are interlinked, hence, to avoid the repetition of the same facts, I have discussed these points simultaneously for my common consideration.
11. It is the specific case of the plaintiff is that, The plaintiff is a registered small scale industry engaged in the business of manufacturing of supply of industrial produce like UREFOAM PIPE SECTIONS and PUFF PIPE SECTIONS etc. The defendant has placed purchase order on different dates for supply of the products of the company, the name of the plaintiff has recommended by ISRO for executing the work with materials to the defendant. The defendant has taken up a project with ISRO and for the said project the defendant has placed the order for the materials of PUFF Slabs of 70 Kg/density in 50mm thickness for the PUFF-IN- SU-TU insulation for the container assemblies, the plaintiff vide E-mail dated 05.02.2011 offered special discount of 5% on two items. The plaintiff vide their further E-mail dated 23.05.2011 placed to the revised offer of special 11 O.S.No.6418/2012 discounted price and the defendant confirmed the purchase order for Rs.4,40,000/- for the PUFF filling and cladding as per quotation. Since the supply of PUFF slabs attracts payment of excise duty and VAT plaintiff vide their E-Mail dated 08.07.2011 sought for the bifurcation of the order for supply separately and insulations and labour charges separately by enclosing two sample per forma invoices. The defendant has placed orders for the execution of work for a sum of Rs.1,61,750/- through the purchase order No.5120-01-13A/2011-12, dated 30.12.2011 and materials for a sum of Rs.2,78,250/- through the purchase order No.5120-01/13B/2011-12 dated 30.12.2011. Inspite of placing purchase orders there had been an inordinate delay on the part of the defendant to get the container assembly read for the insulation and the plaintiff has made to hold the molded PUFF slabs and chemical in their stock since December 2011 blocking their funs raised through bank loans and causing them financial loss by paying interest. Plaintiff vide E-mail dated 6.01.2012 informed the defendant that, if the project is further delayed for the site clearance the plaintiff will not able to hold on the price agreed due to the basic raw materials increase and other incidental expenses. Therefore the defendant through E- mail dated 20.01.2012 informed the plaintiff that they are 12 O.S.No.6418/2012 amending the purchase order accepting the amendment for terms of payment and amended purchase order for materials for a sum of Rs.1,95,180/- through the revised purchase order No.5120-01-13A1/2011-12 dated 21.01.2012 and materials for a sum of Rs.2,78,250/- through revised purchase order No.5120-01/13B1/2011-12, dated 21.01.2012. The plaintiff has supplied the materials for a sum of Rs.2,54,096/- vide their invoice bearing No.0229/11-12, TO53/11-12 and TO54/11-12, all dated 02.02.2012 and the materials for a total sum of Rs.2,29,612/- vide their invoices bering No.0260/11-12, TO60/11-12 and TO61/11-12, all dated 16.03.2012 qand materials for a sum of Rs.32,558/ vide invoice No.T005/12- 13 dated 27.04.2012.
12. Further, it is the case of the plaintiff that the original specification as per the order was for IN-SI-TU filling of PUFF Chemical system after S.S. cladding which was altered by the defendant as per the instructions of ISRO which have incurred additional expenditure for labour on account of the change in specifications. The defendant has agreed to pay the additional cost incurred for the rework as per the e-mail, dated 19.03.2012, 12.04.2012 and 13.04.2012. Plaintiff had supplied materials and 13 O.S.No.6418/2012 executed the works for a total sum of Rs.5,41,016/- out of which the defendant has paid a sum of Rs.1,32,000/- on 16.06.2011 and a further sum of Rs.1,22,096/- on 12.03.2012 totally amounting to Rs.2,54,096/- and a sum of Rs.2,86,920/- remains outstanding. Inspite of repeated requests and demand the defendant did not come forward to pay the balance due amount by virtue of E-mail dated 21.12.2012 demanding for settlement of balance amount by 30.07.2012. On receipt of E-mail defendant over phone asked the plaintiff the depute one of it officials on 28.07.2012 for the finalization of accounts. The official of the plaintiff company was sent back by the defendant company without taking any decision about settling account, thereafter plaintiff through E-mail dated 31.07.2012 and the copy of the same sent by registered post for demanding the settlement. The plaintiff company is a small scale industry running with the borrowed capital and as per the provisions of Micro, Small and Medium Enterprises Development Act, 2006 and under Sec.16.. If the buyer make the payment of the amount to the supplier, the buyer will be liable to pay the compound interest monthly rest to the supplier on that amount from the appointed day as the case may be''. However, the plaintiff has claimed only simple interest on the outstanding amount 14 O.S.No.6418/2012 at the rate of 24% per annum and hence the defendant is liable to pay sum of Rs.3,53,938/-. Hence has filed this suit.
13. It is the specific case of the defendant that, he has admits that paragraph 1 to 3 of the plaint. Further has contended that the defendant company is a small scale industry running with the borrowed capital as per the provisions of Micro Small and Medium enterprises Development Act, 2006. Hence, defendant is entitled to claim damages with simple interest. The plaintiff was introduced by the ISRO for doing the container work as informed by the ISRO to the defendant and also the plaintiff introduced himself earlier to this as an expert having full knowledge of PUFF and his experience in other Government projects. The plaintiff company does the container work as specified by the ISRO, the defendant as such issued a purchase order. The minutes of the meeting was held on 16-02-2012 at GDR Mektek Ltd with the plaintiff and ISRO jointly for puff filling, cladding work as ordered by PO No.1 and PO No.2. After issuing the purchase order to the plaintiff, the plaintiff taken up the work order as specified in the document No.2 and 3 at the time of defendant made the advance payment of 30% as per PO No.1 and PO No.2 15 O.S.No.6418/2012 on 14.06.2011. the plaintiff came to the defendant company for doing the work order on 02.02.2012 for the two containers which were ready in the plant of the defendant. In the container, the plaintiff work was pour chemical PUFF leveled to the GFRP sheet level, and the cladding work, but the plaintiff did not achieve the quality requirements as specified and discussed during meetings. During the inspection by the project in charge officer, the two container puffing work made by the plaintiff was rejected. In this regard the project officer issued E-mail to the defendant on 04.04.2012 stating that the poor workmanship of puff work and informed them for rejection of the same. Plaintiff later could not achieve the quality which was discussed in the minutes of the meeting. Hence the plaintiff himself introduced the Priya Enterprises for doing the PUFF leveling. Priya Enterprises reworked the Puff work on container in this regard. The defendant having additional burden to do the puff work leveling the puff container for a sum of Rs.1,29,125/-, the plaintiff even refused to do the lading work for which he had agreed during the quotation stage, after continuous search the defendant himself found Elite insulation and trading services for cladding two containers and puff leveling one container. The defendant having incurred loss due to the 16 O.S.No.6418/2012 negligence/irreparable of the plaintiff, the defendant made the payment to the Elite insulation for sum of Rs.1,30,472/- towards the work of the puff leveling on one container and cladding two container and this work completed by the Elite insulation within one month (28.05.2012 to 05.07.2012). After puff and cladding work the defendant painting, graphics, pressure test, load test, handling test and drop test which required 3 months for the completion. The complete finished containers are inspected in the plant of the defendant after that it was delivered to the ISRO on 21.08.2012. The defendant issued invoice along with the delivery challan and the payment shall be paid within 30 days to the invoice holder but in this case the part payment made after lapse of 2 ½ months and also the ISSRO withhold the amount of Rs.8,94,288/- till today, and inspite of several requests and visits this defendant having a minimum estimated total loss of Rs.16,50,000/- and further loss still estimating. Due to non performance of purchase order work as agreed by the plaintiff like puff work, cladding work as per the terms and conditions and joint meeting note the plaintiff agreed to do the work as ordered in the purchase order. As such this defendant made payment against 30% to the plaintiff, subject to terms and conditions of the purchase order. The plaintiff 17 O.S.No.6418/2012 verified the terms and conditions of the purchase order. The plaintiff verified the terms and conditions issued by the purchase order by this defendant like not maintaining the time limit and not performing the standard procedure, as such this defendant having heavy loss, the plaintiff was entitled only to the extent of work done. The defendant has already made the payment to the plaintiff for a sum of Rs.2,54,096/- not more than that plaintiff is entitled.
14. In order to prove the case of the he plaintiff the Accounts Manager and Authorized representative of the plaintiff company has filed his sworn affidavit in -lieu of his chief examination as P.W.1, wherein he has reiterated the same contents which he has narrated in the plaint. Hence to avoid the repetition of same facts, I have not discussed once again. In support of his oral evidence has produced 41 documents and marked as Ex.P1 to 41, for the sake of convenience, I have summarized these documents i.e., Ex.P1 is the Board Resolution passed by the plaintiff company, Ex.P2 is the certificate filed under Sec.65, Ex.P3 and 4 are the E-mail transactions, Ex.P5 is the letter, Ex.P6 is the e-mail transaction, Ex.P7 and 8 are pro-forma invoices, Ex.P9 and 10 copies of purchase orders, Ex.P11 is the E-mail correspondence, Ex.P12 to 14 are the purchase 18 O.S.No.6418/2012 order, Ex.P15 to 21 are copies of invoices, Ex.P22 to 28 are delivery challans, Ex.P29 to 31 is the E-mail correspondence, Ex.P32 is the office copy of the invoice, Ex.P33 is the delivery challan, Ex.P35 is the Ledger Account, Ex.P36 and 37 are the E-mail correspondence, Ex.P38 is the letter, Ex.P39 and 40 are the postal receipts, Ex.P41 is the resolution.
15. P.W.2 is the Managing Director of the plaintiff company has filed his sworn affidavit in lieu of his chief examination, wherein he reiterated the same contents, wherein he has supported the evidence of P.W.1. IN support of his oral evidence has not marked any documents as exhibits, on the other hand he filed memo stating that he has adopt the documents got marked by P.W.1 as exhibits P1 to P41, in support of his affidavit evidence.
16. On the other hand the P.A. holder of the defendant has filed his sworn affidavit, in lieu of the chief examination wherein has reiterated the same contents which he has narrated in his written statement, hence to avoid the repetition of the same facts, I have not discussed once again, in support of his oral evidence has produced 15 documents and marked Ex.D2 to D15, for the sake of 19 O.S.No.6418/2012 convenience I have summarized these documents. Ex.D2 is the SPA dated 15.06.2012, Ex.D3 is the Copy of purchase order defendant.09.04.2011, Ex.D4 is the copy of purchase order, defendant.21.01.2012, Ex.D5 copy of the purchase order, defendant.21.01.2012, Ex.D6 copy of mail issued by ISRO dt. 4.04.2012, Ex.D.7 copy of Mail issued by defendant to plaintiff, defendant.13.04.2012, Ex.D8 is the copy of Mail issued by plaintiff to defendant, dated:13.04.2012, Ex.D9 certificate u/Sec.65(b) of Indian Evidence Act, Ex.D10 copy of purchase order, defendant.17.04.2012, Ex.D11 copy of invoice defendant.24.08.2012, Ex.D12 Copy of account tally statement, Ex.D13 is the copy of purchase order, defendant.21.05.2012, Ex.D14 is the copy of invoice dated 25.10.2012, Ex.D15 is the copy of account tally statement.
17. During the cross examination of P.W.1 has stated it is true in Ex.P1 he has been authorized till 25.07.2013, he has not been authorized by his company to depose in this court. Again he stated that he has been authorized to depose in the court, he has produced further authorization letter the court, apart from Ex.P1 he don't have any authorization letter, he can produce subsequent authorization. During the cross examination of P.W.2 has 20 O.S.No.6418/2012 stated that he has done his post graduate in diploma in management, he can under stand Kannada language. He has not produced any document to show that plaintiff company is a registered company. At present they have two Directors in the plaintiff company, he do not know how many directors were there as on Ex.P41. it is true that Ex.P41 was signed only by him and no other directors. The contract with the defendant was on writing and the same has been produce before this court and it is in the format of the order. There is no agreement which is in writing. It is true that the documents shown to him pertains to the minutes of the meeting dated 14.02.2012. It is marked at Ex.D.1 subject to production of certificate under Sec.65B of the Indian Evidence At. It is true that ISRO has been assigned job to the defendant company, it is true that according to him ISRO only recommended his name for the job in the defendant company, prior to his appointment there was no acquaintance with the defendant company, it is true that as per the work order there was supply the materials as well as to complete the work job to visit the defendant site. It is false that in the work order there was no deviation of labour work and Excise duty. Ex.P9 is the first work order. The amount mentioned in EX.P9 includes the labour charges also. The amended purchase order is 21 O.S.No.6418/2012 Ex.P10 which pertains to purchase of different material and its super seeds Ex.P9. they have completed the project as agreed by him. It is true that as per Ex.P31 the defendant has permitted to complete the work by appointing any other person, it is true that after Ex.P31 has been issued they have not visited the site area and that they have withdrawn from continuing the work. Though there are 7 invoice from Ex.P15 to 21, only six delivery challans have been produced as rest pertains to labour charges, it is true that subsequent to contract, communication was only through e- mail pertaining to the transactions, witness voluntarily stated that one or two documents must have been issue through RPAD. It is false that the communication which are not support of me and not produced before the court. There was no condition in work order that filing up of puff in the container should be in straight level. It is false that there was unsatisfactory work by the and therefore it was rejected by ISRO. It is false to suggest that on account of unsatisfactory work the ISRO through defendant had reassigned the work to them to rectify the said mistake. It is true that they had recommended Priya Enterprises to carry out the subsequent work.
22 O.S.No.6418/201218. Further has stated that he written arguments introduced by ISRO to the defendant. he is aware of the rules and conditions of minute of the meeting dated 14.02.2012, Ex.D1. the defendant has never questioned his work as on date, it is false to suggest that the work done by him was rejected by the ISRO. There was deviation in specifications therefore they withdraw the work, they understood the work as transporting the satellite from ISRO to launching area, the plaintiff and the defendant were to complete the work on behalf of ISRO. There written arguments no contract with the ISRO therefore ISRO is not made party to the suit. There was only sub contract with the defendant as per Ex.P9 and 10. The work assigned was to supply the materials in accordance to the specifications and the specification refers to the dimension, size and weight of the materials. The plaintiff was to fix the ridged Polyurethane Foam Insulation materials in the fabricated container. The original contract was for pouring the chemicals inside the container subsequently there was deviation from this contract. They were not supposed to fill the Puff in the container. It is true tat the work undertaken by them was subjected to the minute of the meeting. They did not have any previous experience with regard this work. It is false that there was already 23 O.S.No.6418/2012 existence of container in the office of the defendant prior to commencement of their work, it is false that the ISRO has shown them the alternate container for the work. It is true that they had to do this kind of work with proper care and caution. It is true that this work has to be handled by experienced and technical equipped persons. He don't remember the technical equipped persons who work to do the work. Their engineer Anoop Krishnan was one them as a Senior Supervisor. The internal report has not been produced before the court.
19. Further has stated that the total cost of the project was Rs.Five lakhs and add and after several amendments and addition of work the cost of the project as per the original order was Rs. Three lakhs and odd. The work was to be completed within 3 months in terms of the contract, the work could not be completed within the time on account of deviation in the specification. It is false that they have deputed incompetent persons to do the project. It is true that Ex.P6 contains the nature of the work allotted to them for that project and he is not sure if already there was container as on 8.7.2011. the work was commence after the purchase order was issued by the defendant, the order was received subsequently on day of Ex.P9 and 24 O.S.No.6418/2012 Ex.P.10. The work commenced in February or March 2012. The final finishing job was yet to be completed for want f payment. The E-mail dated 4.4.2012 now shown to him has not been addressed to him. He was not aware that on 04.04.2012 the Field Engineer had visited and expressed that the work project was not satisfactory therefore had rejected the entire work. It is true to suggest that, on 13.04.2012 they have withdrawn the work but it was on account of other persons, they had requested the defendant to compete the work by other agencies. It is true one more agency referred by them is M/s Priya Enterprises. It is true that thereafter the plaintiff or anybody on their behalf had never visited the site of the work project.
20. Further has stated that, he do not know if the documents now shown to him I the bill issued by Priya Enterprises for their work. He has not visited the site to find out if the work was completed or not after Priya Enterprises were asked to do certain work, he has not enquired about the same with Priya Enterprises. As per Ex.P38, Mahesh, Devikish and Shabarish were represented by the defendant. it is false that he was part of the contract, it is false that contract was finalized in his presence, he don't know that Priya Enterprises has 25 O.S.No.6418/2012 completed puff leveling, cladding, riveting work. It is false that Priya Enterprises completed working one puff filling and raised the bill of Rs. One lakh and odd and he deposing false about the same even though it is in his knowledge. He do not know if the work was allotted to Elite Insulation Company pertaining to puff cladding and leveling bo th the containers and that they had charged one lakh and odd for that work. He has discussed about the additional work and additional charges with the defendant prior to resignation. He had not issued any request letter towards the additional charges incurred by the other agencies to the defendant. it is true that the contention the contract work was for Rs.4,40,000/- after deduction of 5% discount. It is false subsequent alternation of the work order and deviation he has raised the invoice for Rs.4,44,900/-. He has not deducted the amount of Priya Enterprises in the total of Ex.P38, Shekar is an permanent employee of ISRO. They had issued e-mail as per Ex.P31. Prior to 13.04.2012 the contract was given to him. He do not know complete the work therefore he asked them to get the work done by other agency, it is false that due to his mistake the defendant has incurred loss of Rs.16 lakhs and odd. He do not know about the terms and conditions between ISRO and defendant. he did not enquire from 26 O.S.No.6418/2012 ISRO the reason for returning the contract. he don't know about the terms and conditions between ISRO and defendant. it si false to suggest that for not completing the work with in the stipulated time ISRO has with held the payment of Rs.8 lakhs and odd. He do not have contact ISRO because he do not have anything with the ISRO. It is false he is liable to pay the damages. He don't know if the expenditure of Rs.3 lakhs and odd was incurred by the defendant towards the work being done by other agencies. It is false to suggest the defendant I not liable to to pay the amount as claimed by him, it is false that he has filed the false suit against the defendant to harass.
21. During the cross-examination of D.W.1 he has stated that, it is true that defendant company is a registered under the companies act. He has not produced the registration document, he has not produced the board of resolution authorized him to depose before this court, he ha signed the written statement, witness voluntarily stated that, the written statement is not signed by him and it is signed by one Parijatha, he has produced the board resolution which shows that Parijatha is authorize to sign written statement, it is true that the written statement filed by Parijtha without authorization of the defendant through 27 O.S.No.6418/2012 board resolution. It is false that he is not authorize to depose in this case as per Ex.D.2, witness voluntarily states that he has between authorized as per No.6 of Ex.D.2. he is working in the defendant company since from 9 years, he know personally about the suit transaction, it is true that discussion regarding suit transaction started with the plaintiff and defendant in may 2011, it is true that first purchase order by him 9.4.2011 as per Ex.D3. As per Ex.D.3 the plaintiff company is liable to supply the IN-SU- TU insulation of container and cladding, it is true that the purchase order dated 9.4.2011, was amended as per Ex.P9 and 10. it is true that payment also not modified for remaining after supply of the goods. It is true that the container was manufactured by the defendant company and plaintiff was suppose do the IN-SU-TU insulation and cllading.
22. Further has stated that ISRO is company who has engaged the service of defendant, it is first contract with ISRO. ISRO has recommended to the defendant company to worth with plaintiff. it is true that as per Ex.P9 and 10 the palinif has to carried out the work within 4 weeks. It is true that without container being ready plaintiff cannot work without the containers. It is true that the container 28 O.S.No.6418/2012 was ready in Feb.2012, it is true that before Feb.2012 plaintiff is ready with only one container. He has not issued any notice to the defendant calling the explanation for raw material the 2nd container is not ready. It is true that, the purchase order as per Ex.P9 and 10 also modified as per Ex.P13 on 21.1.2012. and payment terms are modified, witness voluntarily stated the payment terms are modified because of non payment of terms.
23. Further as stated that his unique E-mail address is Udya.@ gdrmektek.com. it is true that he has sent the e- mail dated 12.1.2012 as per ex.P11 to the plaintiff authorized representative. It is false to suggest the delay is not for making of non payment, but the delay is caused for non making the container and getting the clearance from ISRO. It is true that plaintiff is no way concerned for getting the clearance from ISRO regarding purchase order produced by plaintiff in this case, witness voluntarily states that, orally they have discussed with them. It is true that, initially they have interested the plaintiff to supply the IN- SU-TU insulation, subsequently as per Ex.P14 they have demanded the plaintiff to make PUF slabs, it is false that either IN-SU TU insulation or PUFF slabs the fabrication of the container must be perfected. It is true that, fabrication 29 O.S.No.6418/2012 of the container was not part of plaintiff, it is defendants work. Plaintiff has not carried out any work for IN-SU-TU before modifying the order. They have not issued any notice to the plaintiff for not carrying of the work within the stipulated time. It is true that, as per the requirement of ISRO they have modified the work of IN-SU-TU insulation to PUFF slabs.
24. Further has stated that he has issued separate order from IN-SU-TU insulation of containers to PUFF slabs, for that he has produced Ex.D4 and 5, it is false that by that time Ex.D4 and 5 IN-SU-TU insulation was done by the plaintiff, he has not issued any notice to the plaintiff for not ready work. It is true that, they have not mentioned the GFRP should be minimum 3 mm in any purchase order. Ex.D.12 and 15 preferred by their accounts officer, he is not author of Ex.D12 and 15, he is not working in the account section of defendant company, Ex.D12 and 15 are conformation of payment, except Ex.D12 and 15 no ther documents produced regarding payment to the supply, the work show in Ex.D.13 is same as shown in Ex.D1 and 14. it is false that the scope of work allotted to the plaintiff as per Ex.D13 and 14 are entirely different. It is true that as per Ex.D33 the plaintiff done extra work other than the 30 O.S.No.6418/2012 purchase order, payment was not paid for extra work. It is false that they have not issued any notice to the plaintiff for termination of the contract work and make the payments, witness voluntarily state that plaintiff has given in writing to entrust anybody and he is not ready to switch of the work. It is false that the defendant is liable to pay the suit claim amount.
25.In order to substantiate the case of the plaintiff he has produced the documents more particularly Ex.P3 which is e-mail dated 5.2.2011. on perusal of Ex.P3 which clearly speaks that " this would refer to the telephonic conversation we had with us regarding our offer for IN-SU-TU PUFF insulation of modular S/C Transmit system assembly. We, as a special case offer to the discount of 5% on item-1 A and 2 A only. All other terms and conditions remain as in our original offer. We now request you to confirm your firm order to enable us to take up the work. Ex.P4 is the e-mail dated 24.5.2011 which speaks that with reference to telecall discussion add with you, we confirm the purchase order for Rs.4,40,000/- only for PUFF filling and cllading as per you quotation. We requisite for a test sample at their sight tomorrow. Meanwhile we will lease po in a day or 2. Ex.P5 is the letter dated 23.4.2011 to the defendant that 31 O.S.No.6418/2012 they have submit their offer with terms and conditions, one of the condition of payment terms, 30% of advance with other 50% against delivery of material to your sight balance against complete of work, which includes flight charges, exclusion, insurance etc. Ex.P6 is the e-mail dated 8.7.2011 arranging to possess the slab required as per the sight requirements since the supply of slabs involves payment of excise duty and vatt , they requesting to bifurcate the order of supply separately insulation and labour charges separately, therefore they enclosing our proforma invoice format and request you to reveal the order accordingly. Although the quantity of PUFF slabs they shall be raising their invoice for actual quantity deliver. ExP7, 8, 910 are the proforma invoice and purchase orders. The another important documents which are marked Ex.P17 to 28 which are invoices and delivery challans.
26. The defendant has produced the documents i.e. Ex.D.1 is the minutes of meeting at GDRM on MTS dated 14.2.2012 and Ex.D.2 is the special power of attorney dated 16.6.2017. on perusal of Ex.D.2 which is the special power of attorney executed by Smt.G.K.Parijatha w/o G.D.R.Krishna, Director of M/s GDR MEK TECH PVT.LTD having office at 182 GDR TECH, Block-C Kethaganahalli 32 O.S.No.6418/2012 village, Bidadi Hobli, Ramanagara Taluk and District constitute and appoint the Udaya S/o Balasubramanayam aged about 31 years working M/s GDR MEK TECH PVT.LTD at KT No.182, GDR TEK block C, Kethaganahally village, Bidadi Hobli, Ramanagara Taluk as her true and lawful attorney in her name and on her behalf to do the acts and things which are executed on 15.6.2017. Ex.D.3 to 15 are the purchase order, mail, invoice, account statement, etc.
27. On perusal of Ex.P3 which is e-mail dated 5.2.2011 at 11.30 a.m. wherein it is clearly mentioned that all other terms and conditions remained as in our original offer, they now requesting to confirm your firm order enable them to take up the work. But the plaintiff has not produced the original offer. What is the original offer and on which they have make a offer is silent either in the pleading or in the evidence of P.W.1. unless and until the terms and conditions are not explained by the parties, this court cannot come to the conclusion that the plaintiff is to do, and not to do the work as per the original offer. The original offer is not produced by the plaintiff, therefore the contentosn taken by the plaintiff that the defendant has no power to adduce evidence etc., is not at all taken into consideration in this stage. Since it is the duty of the 33 O.S.No.6418/2012 plaintiff establish his case on his own leg, not the weakness of the defendant. Herein the case that the plaintiff has filed against the defendant for recovery of money, on the basis of Ex.P3. On perusal of ex.P3 which clearly goes to shows that there is another documents pertains to the terms and conditions in original offer. Unless and until the original offer is not produced by the plaintiff, it is not just fair and reasonable accept the contention f the plaintiff that the defendant is a due for the suit claim. Therefore in the absence of such original offer the plaintiff has failed to establish that the defendant is due for a sum of Rs.2,96,920/- towards supply of PUFF Slabs of 70 kg/density in 50 mm thickness for the PUFF insulation for the container assemblies, as such the plaintiff is not entitled for any relief. Hence I answer issue No.1 and 2 in the negative.
28. Issue No.3 :- In the result, I proceed to pass the following;
ORDER The suit of the plaintiff is hereby dismissed with cost.
34 O.S.No.6418/2012Draw decree accordingly.
[Dictated to the Judgment Writer, the transcript thereof is corrected and then pronounced by me in Open Court, this the 2nd day of April, 2018) (G.A.MULIMANI) XIV Addl. City Civil Judge Bangalore.
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ANNEXURE List of witnesses examined on behalf of the plaintiff :
P.W.1 Sreerag.V. List of documents marked on behalf of the plaintiff :
Ex.P1 : Board Resolution Ex.P2 : Certificate under Sec.65-B of Indian Evidence Act Ex.P3 : e-mail dated 5.2.2011 Ex.P4 : e-mail dated 23.05.2011 Ex.P5 : Letter, dated 23.05.2011 Ex.P6 : e-mail transaction Ex.P7&8 : Pro-forma and Invoice
Ex.P9&10 : Office copy of purchase order through e-mail Ex.P11 : e-mail correspondence Ex.P12 : purchase order Ex.P13&14 : Purchase orders 35 O.S.No.6418/2012 Ex.P15 to 21: Copies of Invoice Ex.P22 to 28 - delivery challans Ex.P29 : e-mail correspondence Ex.P30 : e-mail correspondence Ex.P31 &32: e-mail correspondence, Ex.P33 : copy of invoice Ex.P34 : delivery challan Ex.P35 : Ledger account Ex.P36 to 37: Letters, Ex.P38 &39 : Postal receipts Ex.P41 : Resolution.
List of witnesses examined on behalf of the defendant :
-NIL-
List of documents marked on behalf of the defendant :
- NIL-
XIV Addl. City Civil Judge Bangalore.36 O.S.No.6418/2012