Delhi District Court
Ms Abacus Heat Transfer Ltd vs Ms Broadcast Engg. Consultants India ... on 13 April, 2026
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE
- 05 SOUTH EAST, SAKET COURTS: NEW DELHI
CS DJ 565/2016 7772/16
CNR No. DLSE01-000904-2016
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs.
MS ABACUS ENGINEERING COMPANY (1st Suit)
In the matter of :-
M/s Broadcast Engineering Consultants India Ltd,
14-B, Ring Road, Inderprastha Estate,
New Delhi-110002 .... Plaintiff
Versus
M/s Abacus Engineering Company (Now Abacus Heat Transfer Ltd.)
Through Managing Director
Sh. Vikram Sawhney,
D-15/4, Okhla Industrial Area,
PH-II New Delhi-110020 .....Defendant
CS DJ 568/2016 10323/16
CNR No. DLSE01-000227-2011
MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST
ENGG. CONSULTANTS INDIA LTD (2nd Suit)
In the matter of :-
M/s Abacus Engineering Company (Now Abacus Heat Transfer Ltd.)
Through Managing Director
Sh. Vikram Sawhney,
D-15/4, Okhla Industrial Area,
PH-II New Delhi-110020 ......Plaintiff
Versus
M/s Broadcast Engineering Consultants India Ltd,
14-B, Ring Road, Inderprastha Estate,
New Delhi-110002 .....Defendant
Date of Institution of 1st suit : 20.05.2011
Date of Institution of 2nd suit : 18.11.2011
Arguments heard : 14.03.2026
Date Of Judgment : 13.04.2026
CS DJ 565/2016 7772/16
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit)
CS DJ 568/2016 10323/16
MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim)
Page No.1 of 41 Dated: 13.04.2026
PRABH Digitally
by PRABH
DEEP KAUR
signed
DEEP Date:
KAUR 2026.04.13
17:02:13 +0530
SUIT FOR RECOVERY OF Rs.11,66,000/- ALONGWITH
PENDENTELITE INTEREST (1st SUIT).
SUIT FOR RECOVERY OF RS.54,33,256/- ALONGWITH
PENDENTE-LITE AND FUTURE INTEREST (2nd SUIT).
JUDGMENT
1. Vide this common judgment, the 1st suit of the plaintiff for the recovery of Rs.11,66,000/- along with pendentelite interest filed against the defendant and the 2nd suit of the defendant for recovery of Rs.54,33,256/- along-with pendentelite and future interest @ 18% filed against plaintiff have been disposed off. For the sake of convenience, the parties will be referred to their status in the 1 st suit i.e. M/s Broadcast Engineering Consultants India Ltd. being referred as plaintiff and M/s Abacus Engineering Company (Now Abacus Heat Transfer Ltd.) being referred as defendant.
2. Admittedly plaintiff had entered into a contract with All India Radio (hereinafter referred to as AIR) for replacement of old transmitters. In pursuant to the same, plaintiff placed Purchase Order No. BECIL/AIR/1000 KW MW Tx./133/2009 dated 02.12.2009 (hereinafter referred as PO) for the supply of water to air Fin and Tube type Heat Exchangers (hereinafter referred as HE) for AIR Rajkot & Chinsurah in favour of the Defendant. The purchase order was based on the quotation dated 11.01.2007 whose validity was extended till 31.12.2009. As per PO Defendant was to Design, Manufacture and Supply 2 HEs for total consideration of Rs. 22,80,000 for each i.e. Rs. 45,60,000/- for both the HEs. Along with the PO, terms and conditions of the contract and the specifications of the HEs were provided to the CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.2 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:02:18 +0530 defendant. As per the contract, plaintiff was required to pay 20% advance against submission of Bank Guarantee of equivalent amount. However, defendant furnished indemnity bond against the advance payment after receipt and acknowledgment of the order. Thereafter, advance payment of Rs. 9,12,000/- was released in favour of the Defendant vide cheque dated 08.03.2010.
The Defendant vide mail dated 26.02.2010 sought amendment in price of HEs and plaintiff vide mail dated 26.03.2010 agreed to the amended price i.e. Rs. 24,30,000/- for each HEs. Vide letter dated 30.03.2010 new PO was issued confirming the revised price. The first HE was to be supplied by the end of May,2010 and second HE by end of June, 2010 respectively. Both parties were having constant and regular communication.
3. Now the dispute arose between the parties because as per plaintiff, defendant failed to manufacture the HEs within time and after pre-delivery inspection (PDI), defendant was constantly provided with the feedback but defendant failed to rectify the defects as per specifications provided to defendant at the beginning despite repeated opportunities and also failed to deliver even the first HE, therefore, plaintiff canceled the contract and filed the suit for recovery of advance payment. As per plaintiff, defendant assured the plaintiff to indemnify plaintiff towards advance payment in case of non-supply of HE and admittedly, defendant had not supplied /delivered goods to defendant, hence, the suit.
4. On the other hand, as per defendant, the plaintiff kept changing the requirements and kept conveying new requirements, resulting into CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.3 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2026.04.13 KAUR 17:02:21 +0530 delay in finalization of first HE. Further, due to malafide intention, plaintiff kept suggesting modifications and new specifications just to wriggle out from the contract despite the fact that defendant had completed the manufacturing of first HE and had procured the raw material for the second HE. Therefore, defendant filed the suit for recovery for the sum towards balance of both HEs, for the amount assured by plaintiff to be paid in the future order and the amount incurred towards storage of the HE till the same were sold as scrap.
5. From the pleadings of the parties, following issues were framed vide order dated 08.08.2016 in both the suits. Issues in the 1st suit:
1. Whether the plaintiff is entitled to recover an amount of Rs.11,66,000/- or any other amount along with interest, pendente lite and future @ 18% per annum or at any other rate from the defendant on the basis of the grounds taken in the plaint? OPP.
2. Whether the plaintiff is entitled to recover damages @ 10% of the contract amount or the actual amount whichever is higher which may be deducted by the and user for delayed supply? OPP.
3. Relief.
Issues in the 2nd suit:
1. Whether the defendant is entitled to recover an amount of Rs.54,33,246/- from the plaintiff along with interest @ 18% per annum? OPP.
2. Whether there is no privity of contract between plaintiff and defendant? OPD
3. Whether the suit for recovery has not been instituted through a CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.4 of 41 Dated: 13.04.2026 Digitally signed by PRABH PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:02:26 +0530 duly authorized person? OPD
4. Whether the suit for recovery has been filed without any cause of action? OPD
5. Relief.
6. Vide order dated 08.08.2016, both suits have been consolidated for the purpose of trial and the 1st suit being instituted prior in time, has been treated as lead suit and plaintiff in 1st suit to lead evidence first.
7. Plaintiff's evidence In order to prove its case, the plaintiff examined Sh. Awdesh Pandit as PW-1. He tendered his evidence by way of affidavit as Ex.PW1/A and reiterated the contents of the plaint and has relied upon the documents i.e Ex. PW-1/1 to Ex. PW-1/34. Further, plaintiff summoned the record from AIR through Sh. K. Narayan who was examined as PW-2 and he brought the summoned record which is Ex.
PW-2/1(colly). Further, plaintiff examined Sh. I.S. Mehta as PW-3. All the three witnesses were cross examined at length by Sh. Harpreet Singh, Ld. counsel for the defendant. Thereafter, PE was closed and the matter was fixed for defendant's evidence.
8. Defence evidence The defendant examined Sh. Vikram Sawhney, as DW-1. He tendered his evidence by way of affidavit Ex.DW1/A and reiterated the contents of 1st suit and the written statement and has relied upon the documents i.e Ex.DW-1/1 to Ex.DW-1/27 (colly). He was cross examined at length by Sh. Saurabh Ratogi, Ld. counsel for the plaintiff and the matter was listed for final arguments.
9. Final arguments:
CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.5 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:02:30 +0530 Sh. Dattaray Vyas, Sh. Shashank Dixit, Sh. Kunal Raj, Sh. Abhinav Kumar Dewalia and Sh. Saurabh Rastogi, Ld. Counsels for plaintiff and Sh. Harpreet Singh, Ld. Counsel for defendant have addressed final arguments and meticulously gone through the record and both the parties have also filed written arguments in which they have reiterated the arguments addressed before the Court and same are not reproduced here in verbatim for the sake of brevity but will be dealt alongwith the findings upon issues at the relevant stage.
10. Issue-wise findings are as follows:-
Issues in the 1st suit:
1. Whether the plaintiff is entitled to recover an amount of Rs.11,66,000/- or any other amount along with interest, pendente lite and future @ 18% per annum or at any other rate from the defendant on the basis of the grounds taken in the plaint? OPP.
2. Whether the plaintiff is entitled to recover damages @ 10% of the contract amount or the actual amount whichever is higher which may be deducted by the and user for delayed supply? OPP.
The onus to prove issue nos. 1 and 2 was placed upon the plaintiff. Both the issues are taken together for the sake of brevity as both the issues are interlinked and involve same discussion.
11. From the pleadings, it is clear that plaintiff has filed suit for recovery on the ground that defendant failed to supply heat exchanger on the scheduled date and also failed to supply the quality product as per specifications/standards clearly communicated to the defendant in the beginning.
As per plaintiff, time was essence of the contract and on account CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.6 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:02:35 +0530 of non-supply of heat exchangers by the defendant to the plaintiff, plaintiff could not execute the contract with AIR in time and as a result of which the end user deducted a sum of Rs. 2,82,46,583/- as liquidated damages from the plaintiff. It has been further stated that defendant had given indemnity bond with security cheque to the plaintiff and thus, defendant had undertaken to refund to the plaintiff an amount of 20% of the order value i.e. Rs. 9,12,000/- in the event of non-supply of equipments by the defendant and admittedly, defendant had not supplied the same, therefore, defendant is liable to refund the said amount of Rs. 9,12,000/- paid to defendant as advance payment, alongwith the interest.
12. As per defendant, time was never the essence of contract and it was the plaintiff who had delayed the execution of work by continuously amending the drawings and amending the design of the product. As per defendant, plaintiff cancelled the contract with malafide intention as plaintiff decided to buy the heat exchangers from some foreign company. Further, as per defendant, the plaintiff has not filed the suit on the basis of indemnity bond and the said plea is dehors the pleadings.
13. Before, dwelling into the rival contentions of the parties, it is important to take note of emails/communication filed by the parties:-
Date and time of email Sent by To whom Crux of mail Relevance/ implication Email dated 09.01.2007 Plaintiff Defendant Inviting the tender Plaintiff invited (Ex. P1 in 2nd suit) for Air Heat tender from Exchanger(hereinafte defendant.
r referred as HE for
the sake of
convenience)
Letter dated 11.01.2007 Defendant Plaintiff Quotation for the Defendant
CS DJ 565/2016 7772/16
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.7 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:02:39 +0530 (Ex. P1 in 1st suit and Ex. requirement of HE in mentioned as P2 in 2nd suit) reply to the email Abacus Projects dated 09.01.2007. Inc. Defendant gave the quotation.
Letters dated Defendant All India Giving authority to 11.01.2007 Radio plaintiff and (Ex. P3 and Ex. P4 in 2nd accepting the -
suit) guarantee terms of
All India Radio.
List issued on 07.01.2008 Defendant Plaintiff Requirement list. List issued after
(Ex. P5 in 2nd suit) one year
Letter dated 30.03.2009 Plaintiff Defendant Confirming the Quotation
(Ex. P19 in 2nd suit) quotation dated confirmed after
19.01.2007 and mail 2 years
dated 30.10.2009. (due to litigation between plaintiff and third party).
No communication for 7 months.
Email dated 30.10.2009 Defendant Plaintiff Confirming the After 7 months, (Ex. P6 in 2nd suit) validity of offer upto plaintiff 31.12.2009 confirmed the validity of offer.
Email dated 30.10.2009 Plaintiff Defendant Confirmation given (Ex. P7 in 2nd suit) No communication for one month.
Email dated 01.12.2009 Plaintiff Defendant Meeting at 11 am on (Ex. P8 in 2nd suit) 02.12.2009 at the office of plaintiff -
fixed.
Email dated 14.12.2009 Defendant Plaintiff To issue purchase (Ex. P9 in 2nd suit) order in name of M/s Abacus Engineering -
Co.
Letter dated Plaintiff Defendant Acceptance of PO issued. 22.12.2009/PO quotation dated Defendant.
(Ex. P2 in 1st suit and Ex. 19.01.2007 and mail Defendant
P10 in 2nd suit) dated 30.10.2009. mentioned as
M/s Abacus
Engineering
Company.
Letter dated 24.12.2009 Defendant Plaintiff Acceptance of PO Defendant
(Ex. P3 in 1st suit and Ex. given by the plaintiff clarified that LD
P11 in 2nd suit) with the condition not acceptable.
that defendant will No subsequent
submit indemnity communication
bond for advance by plaintiff to
CS DJ 565/2016 7772/16
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.8 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:02:44 +0530 payment and LD not defendant acceptable. regarding the condition of defendant that LD not acceptable.
14. Admittedly, plaintiff had nowhere protested to the same, rather plaintiff accepted the indemnity bond. Further, during cross examination, PW-1 deposed that:
".......I cannot say whether any reply and communication was sent by the plaintiff to the defendant in furtherance at letter dated 24.12.2009 Ex. PW-1/6. It should be to the knowledge to technical team of the plaintiff. .........It is incorrect to suggest that Ex. PW-1/6 was accepted in totality by the plaintiff. Vol. Technical team must have sent their protest to the said letter to the defendant, however, the same is not on the court record.
It is correct that in the pleading and in the affidavit the plaintiff has not mentioned and /or pleaded that Ex. PW-1/6 was only accepted to the extent only of the portion Mark Z-1 to Z-2 in the said affidavit........ .....Que. Whether plaintiff communicated to the defendant that clause 3 of the PW-1/6 was not accepted to them. Ans. There is no documents on the Court file to show that we had objected to clause 3 of Ex. PW-1/6, however, in terms of Ex. PW-1/8 and Ex. PW-1/9 discussion in this regard held with the defendant and finally new work order was placed Ex. PW-1/10.
It is correct that in Ex. PW-1/8 and in Ex. PW-1/9, there is no mention of any discussion vis a vis clause -3 of Ex.PW-1/6. Vol. It is part of verbal discussion with defendant. Mr. Vikram Sahni assured that one heat exchange would be supply to BECIL by the end May 2010 and second by the end of June 2010 and after receipt of new order Ex. PW-1/10 no objection was raised by the defendant in respect of the LD........
Thus, once defendant had accepted the purchase order subject to two conditions that instead of bank guarantee, defendant would give indemnity bond and LD not applicable, and plaintiff had not protested CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.9 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:02:48 +0530 to the same, rather plaintiff had accepted the indemnity bond in place of bank guarantee, then the conduct of plaintiff is equivalent to implied consent to both the conditions. Now plaintiff cannot be allowed to take the clock back stating that plaintiff had not agreed to the condition of defendant that LD not applicable though plaintiff had accepted the indemnity bond from the defendant, instead of bank guarantee. In other words, plaintiff is estopped from stating that plaintiff has not accepted the conditions of the defendant and it will be presumed that defendant accepted the purchase order of the plaintiff subject to the change mentioned by the defendant.
15. Further, perusal of record shows that after 24.12.2009, plaintiff sent first email to defendant on 11.01.2010 and the details are as follows:-
Email dated 11.01.2010 Plaintiff Defendant Requisition of drawings as per (Ex. P13 in 2nd suit) purchase order and also to give bank guarantee for advance payment.
Email dtd. 05.02.2010 Plaintiff Defendant Requisition of Drawings for heat (Ex. P4 in 1st suit) exchangers sought on urgent basis. Email dtd. 09.02.2010 Plaintiff Defendant Requisition of drawings informing (Ex. PW1/7 in 1st suit and Part of that DP is 12 weeks from date of Ex. P14 in 2nd suit) placement of order and both HE to be delivered by 15.03.2010.
Email dtd. Defendant Plaintiff Drawings sent by Drawings
10.02.2010 defendant to submitted
(Ex. P4 in 1st suit and Ex. P14 in plaintiff for almost after 2
2nd suit) approval. months from
PO. Accepted
Letter dated 15.02.2010 Defendant Plaintiff Submitting
by plaintiff
(Ex. P15 in 2nd suit) indemnity bond
without any
and security
protest.
cheque with
request for release
of advance
payment of Rs.
9,12,000/-.
CS DJ 565/2016 7772/16
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.10 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP KAUR DEEP Date:
KAUR 2026.04.13 17:02:53 +0530 Email dated 11.01.2010 Plaintiff Defendant Requisition of drawings as per (Ex. P13 in 2nd suit) purchase order and also to give bank guarantee for advance payment.
Email dated 19.02.2010 Defendant Plaintiff Giving layout (Ex. P16 in 2nd suit) drawings for HE.
Email dtd. Defendant Plaintiff PO(Purchase Order) Amendment 26.02.2010 submitted with request for release of (Ex. P5 in 1st suit and Ex. P17 in advance. 2nd suit) No response from plaintiff to the defendant for one month Email dtd. Plaintiff Defendant Approval of PO After 3 months 26.03.2010 amendment by the from acceptance (Ex. P18 in 2nd suit) plaintiff. from quotation Defendant assured PO amended.
that one HE to be The first dead delivered by end line as of May 2010 and 15.03.2010 second by the end already expired.
of June,2010
16. Now, much has been argued on the issue that plaintiff had accepted the amended purchase order under the immense pressure and defendant had malafide intention since beginning. However, once the plaintiff had accepted the amended purchase order and made the payment in pursuant to amended purchase order, the plea seems to be taken only for the purpose of name sake.
17. Question of time being essence of the contract.
Admittedly, purchase order has been placed on 22.12.2009 and the purchase order was amended vide email dated 26.03.2010 (Ex. P18 in 2nd suit). Thereafter, advance has been paid in March 2010 and copy of approved drawings has been given by plaintiff to defendant vide letter dated 06.04.2010 (Ex. P21 in 2nd suit). As per purchase order, condition no. 4 is as follows:
Delivery period - Within 12 weeks from the placement of the order. CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.11 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:02:57 +0530 Drawings will be submitted within one week of the order for approval of BECIL.
Thus, there is no fixed date of delivery mentioned in the purchase order Ex. P10 in the 2nd suit.
18. In commercial or mercantile contracts, the need of certainty is of great importance. Where both parties are engaged in business and articles are purchased by one party from the other party for business purposes, the transaction falls within the term mercantile transaction. There is no place in mercantile contracts for the presumption that time is not of the essence of the contract, and the Supreme Court has held time and again that stipulation as to time is ordinarily of the essence of the contract in mercantile contracts, and that when this important condition is broken, the aggrieved party is entitled to rescind the contract.
In modern business documents, men of business are taken to mean exactly what they say. Merchants are not in the habit of placing upon their contracts, stipulations to which they do not attach some value and importance. Parties to mercantile contracts, therefore, cannot rely upon the present section to save them from the consequences of unpunctuality.
19. The question, whether time is of the essence of the contract, does not depend upon express stipulation to that effect made by the parties, but it depends upon the intention of the parties. Notwithstanding that a specific date is mentioned, one has not to look at the letter but at the substance of the contract. Whether time is of essence is a question of fact, and the real test is the parties' intention. It depends on the facts and circumstances of each case. The intention of CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.12 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:03:01 +0530 the parties can be ascertained from:
(i) the express words used in the contract; (ii) the nature of the property which forms the subject matter of the contract; (iii) the nature of the contract itself; and (iv) the surrounding circumstances.
In various judgments, time has been held to be of the essence of contract in shipping and commercial contracts as regards delivery of goods. Where the contract work was connected with another time bound project, which in turn was linked with a work undertaken by a foreign country to fabricate and erect plant and machinery within a stipulated time, time was of the essence.
20. From the perusal of communication between parties, it is clear that though parties have never agreed in writing about the schedule of delivery but plaintiff has always mentioned the date of delivery in the letters and emails though plaintiff had kept extending the same from time to time. Therefore, Court has to consider the facts and circumstances to evaluate the intention of parties.
Perusal of communication between parties, as elaborated in para no. 12 reveals that the timeline for supply of heat exchangers has been repeatedly extended by the plaintiff.
In the email dated 09.02.2010 Ex. PW-1/7 in 1 st suit, it has been mentioned that "the DP is 12 weeks from date of placement of order and both HE are to be delivered by 15.03.2010 which includes approvals, manufacture, inspection, packing and delivery also".
Thereafter, plaintiff revised the deadline because the email dated 26.03.2010 (Ex. P18 in 2nd suit) sent by plaintiff to defendant mentioned that "you had assured that one heat exchanger will be CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.13 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP KAUR DEEP 2026.04.13 Date:
KAUR 17:03:04 +0530 supplied by end of May 2010 and the second by the end of June 2010". Thus, plaintiff admitted that it had extended the timeline for delivery of HE.
21. Thereafter, the email dated 18.06.2010 (Ex. P9 in 1 st suit) mentioned that "again your promise with Director (O&M), BECIL to complete all the work of the first set and supply it by 18.06.2010 has not been fulfiled by you". Thus, plaintiff accepted the request of extention of time made by the defendant.
Further, during cross examination PW-1 deposed that:
"......The advance money was paid by the plaintiff to the defendant in March 2010 after receipt at indemnity bond.........It is correct that the defendant had to commence the work and its obligation under the purchase order after the receipt of the advance money from the plaintiff. It is correct that there were no target schedule made alongwith the purchase order. Purchase order clearly mentioned the time within which the final product to be given by the defendant to the plaintiff........I cannot say if the drawing word to be provided by the defendant to the plaintiff only after receipt of the advance money. I have no knowledge of the same and technical team with the response. The drawing was received by the plaintiff from the defendant only after plaintiff had given advance money to the defendant. I cannot say if the drawing in received by the plaintiff from the defendant by email dated 10.02.2010, which email in part at Ex. PW-1/7, this must to be the knowledge of technical team of the plaintiff. I had gone through Ex. PW-1/7 at the time preparation of my affidavit Ex. PW-1/A. Technical team of the plaintiff raised objection to the drawing by email dated 26.03.2010 which in Ex. PW-1/9. I cannot say the time was never the essence of the purchase order and that is why the plaintiff after inordinate delay commented on the drawing received from the defendant on 10.02.2010 commented from the same on 26.03.2010. There may be emails exchange between the parties in respect of drawing between 10.02.2010 and 26.03.2010, but the same are not on the Court record. These emails have not been filed since we did not find the same relevant /necessary....................The drawing CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.14 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:03:08 +0530 which were given to us by the defendant were approved and finally given by us to defendant on 06.04.2010 based on final revised order placed on 30.03.2010............There is no document on the record to show that the plaintiff had notify to defendant between Feb. 2010 and 6 April 2010 that the drawing submitted by the defendant not in consonance with the specification detailed in purchase order. However, I relied on Ex. PW-1/9 letter dated 26.03.2010 and also say that the said letter was the result at various meeting between the parties.............I cannot (comment) say if the plaintiff had changed the drawing and specification after 06.04.2010...."
Thus, during cross examination PW-1 admitted that no deadline was fixed alongwith the purchase order and he admitted that the drawings were approved on 06.04.2010 only while as per plaintiff, the first dead line to supply HE was 15.03.2010. Thus, plaintiff itself approved the drawings of HE after the first deadline fixed for supply of HE.
22. Now the defence of the defendant is that the time was never essence of the work and it is the plaintiff who had delayed the execution of work by continuously amending the drawing and amending the design of the product. Therefore, the issuance of said termination letter is bad, arbitrary and consequential. Accordingly, the court has to consider whether the non-performance of the contract by the defendant is attributable to the plaintiff or not. To do, lets have a look upon the relevant communication between parties. Email dtd. Plaintiff Defendant Copy of approved The copy of the drawing given to 05.04.2010 drawings forwarded us today is more or less (Ex. P6) with request for approved for the specifications timely supply of HE. given in BECIL PO. It will be studied and minor points, if required, will be intimated to you very shortly. It is requested that you may start detailed designing, manufacturing, CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.15 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2026.04.13 KAUR 17:03:13 +0530 testing etc. immediately for timely supply of heat exchangers".
Letter dated Plaintiff Defendant Copy of approved
06.04.2010 drawings supplied.
(Ex. P21 in 2nd suit) No communication for one and half months Thus, the plaintiff had left the scope of changes in the drawing open. Further, plaintiff had asked the defendant to start detailed designing etc. and it implies that plaintiff had given only the basic drawings or sketch to the defendant and detailed designing was to be done by the defendant and obviously the detailed designing must be subject to approval of plaintiff only. It implies that the minute or micro specifications were not finalized between the parties even at the time of approval of drawings by the plaintiff.
23. The finding is further corroborated further emails.
Email dated Plaintiff Defendant Defendant has been
26.05.2010 asked to recheck the
(Ex. P22 in 2nd design given by
suit) defendant in respect
(Also filed by of motor and fan
plaintiff in the sizes as per
first suit). plaintiff's
requirement.
Email dtd. Plaintiff Defendant Supply of sketch First time plaintiff raised the
28.05.2010 prepared by M/s issue of starters.
(Ex. P20 in 2nd Thomson with
suit) request to fix date of
PDI +
Star Delta Starter to
be used as desired by
Thomson.
Email dtd. Plaintiff Defendant Position of No clarifications how to decide
31.05.2010 distribution work to the position of distribution work
(Ex. P23 in 2nd be decided, + Additional specification given.
suit) information of
diameter of pipes to
be given +
CS DJ 565/2016 7772/16
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.16 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP KAUR DEEP 2026.04.13 Date:
KAUR 17:03:17 +0530 requirement of separate TPN Type MCB and Starter for motor of each HE.
Email dtd. Plaintiff Defendant To expedite the
01.06.2010 fabrication of HEs as
(Ex. P7) the same was behind
the scheduled date.
Request for PDI call
for one HE at
earliest.
Thereafter no communication for 15 days Email dtd. Defendan Plaintiff Electrical wiring 17.06.2010 t diagram of DOL (Ex. P8 in 1st Starter suit and Ex.
P55 in 2nd suit) Email dtd. Plaintiff Defendant Calling the meeting 17.06.2010 on 18.06.2010 at (Ex. P8) 4:00 PM at the office of plaintiff for delivery schedule of HE.
Email dtd. Defendan Plaintiff Request to postpone
18.06.2010 t the meeting for
(Ex. P8 22.06.2010 due to ill
health of MD.
Email dtd. Plaintiff Defendant Plaintiff showed Revised dead line written as
At 5:27 PM dissatisfaction 18.06.2010.
18.06.2010 towards the work
(Ex. P9 in 1st progress at the end
suit. of defendant.
Email dtd. Defendan Plaintiff Assuring that Defendant referred as M/s
At 20:10 PM t fabrication is at the Abacus Heat Transfer Ltd. (for
18.06.2010 final stage and the first time)
(Ex. P9 in 1st declining the request
suit and Ex. of providing Star
P24 in 2nd suit) Delta Starter and
Ex. PW1/D1 informing that the
finalization of
contractor of
packing is under
process.
As per plaintiff, deadline of May 2010 expired, still no communication for 10 days Email dtd. Plaintiff Defendant Specification given 28.06.2010 like location of (Ex. P25 in 2nd MN9, L&T make suit and Ex. Star Delta Starter P1/D2 in 1st etc. CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.17 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:03:21 +0530 suit) Email dtd. Defendan Plaintiff Quotation of packers 30.06.2010 t forwarded.
(Ex. P26 in 2nd suit) Email dtd. Plaintiff Defendant Selection chart for 28.06.2010 Star Delta Starter (Ex. P27 in 2nd suit and Ex.
PW1/D3 in 1st suit) 24 Thus, it is clear that there was constant communication between parties with respect to specifications/detailed designing of HEs. It is also clear that even by the end of May 2010 the specifications could not be finalized between the parties, therefore, plaintiff cannot say that defendant failed to deliver the first set of HE by end of May 2010 because even till the end of May 2010 parties were working on the specifications of HE.
25. Further, vide Email dated 02.07.2010 (Ex. PW1/D6 in 1st suit) written by plaintiff to the defendant, plaintiff had supplied the circuit diagram of the switch panel qua HE. Now, switch panel is part of HE and plaintiff can't say that switch panel is different. Thus, plaintiff provided the diagram of switch panel to defendant after expiry of dead line of 18.06.2010.
Further, the email dated 06.07.2010 (Ex. P54 in the 2 nd suit) written by plaintiff to defendant is as follows:
Dear Sir, Reference your mails dated 03.07.2010 in reply to our mail dated 02.07.2010 sending to you the circuit diagram fabrication of a panel to mount all the eight MN Star Delta starters for 7.5 kW motors of Heat Exchanger. It is mentioned that Mr. Vikram Sawhney had said that he is providing Star Delta starters in place of D.O. L. starters CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.18 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:03:25 +0530 for Heat Exchangers in a most recent meeting with Mr. I.S. Mehla, Director (O&M) in BECIL, ITO office. He had also seen the Brochure of L&T & identified the MN9 series Starter to be given.
Regarding the size of panel. 2.4 Mtrs x 2.2 Mtrs x 0.6 Mtrs as mentioned by you, it is mentioned that each MN Star Delta starter in question is of size 430 (H) x235 (W) x136mm (D). 4 Starters on top row & 4 Starters in bottom row can very comfortably be accommodated in a box of 1315 (W) x1200(H) x 150mm (D) including terminal strips for power distribution & control cable terminations. As per our circuit diagram main switch & Bus bar is not desired. All the wiring is to be carried out with 16, 10 & 2/1.5 mm cables with entry points on the top of the Panel. The panel car be got completed in 5 to 7 days.
It is requested that the panel may be got fabricated at the earliest on the basis of drawing sent to you as supply of Heat Exchanger is already very late".
In the above said email, plaintiff had given circuit diagram for fabrication of panel to the defendant and had also eliminated the main switch and bus bar from the design. Thus, even the first week of July 2010, plaintiff was communicating the deviation or variation in the design and thus, the final structure of the HE was yet under the consideration.
26. Further, the email dtd.28.07.2010 (Ex. P50 in 2nd suit) written by plaintiff to defendant shows that plaintiff had given directions with respect to location of MCBs housed in IC Box flanges etc. It implies that the location of isolating switch were not finalised by plaintiff till the end of July 2010.
Further, vide Email dtd. 28.07.2010 (Ex. P52 in 2nd suit), defendant had asked the plaintiff for location of isolating switch with request for the drawings of HE with location of isolating switches so that job can be finished. Thereafter, vide Email dtd. 29.07.2010 (Ex. CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.19 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:03:28 +0530 P53 in 2nd suit), plaintiff had provided panel of HEs with IC boxes to the defendant. Thus, even by the end of July 2010 the location of switches were being discussed and were not finalized.
Further, it seems that the specifications could not be finalized due to nature of the product to be delivered by the defendant to the plaintiff. However, once it is clear that constant, though minor, changes or improvements were being done by the plaintiff constantly, the plaintiff cannot put entire blame on the shoulders of defendant stating that defendant failed to deliver the product as per specifications decided initially because it is clear that the specifications were being exchanged on day to day basis.
27. Further, plaintiff had contacted the defendant with respect to power panels and there were exchange of various emails between parties with respect to the same. As per defendant, the work of power panels was different from the order of HE and during cross examination, even PW-1 deposed on the same line that the work of power panel was different from HE, however, prior to that plaintiff had taken different plea. The relevant emails are as follows:
Email dated Defendant Plaintiff Drawings forwarded to Power Panel manufacture. 03.07.2010 at 12:14 PM (Ex. P30 in 2nd suit) Email dated Defendant Plaintiff Quotation for Issue as to power panel cropped 03.07.2010 manufacture of up between parties.
at 1:45 PM Power Panel given
(Ex. P31 in 2nd by third party is
suit) given. Defendant
insisted that panel
was not part of pre-
order discussion.
Email dated Plaintiff Defendant Rules for export packings supplied.
02.07.2010
CS DJ 565/2016 7772/16
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.20 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:03:33 +0530 at 9:06 pm Ex. P29 in 2nd suit and Ex.
PW1/5 in 1st suit) Email dated Plaintiff Defendant As per plaintiff, defendant assured to provide Star 06.07.2010 Delta Starters instead of DOL Starters and further At 10:46 AM clarifications provided insisting that supply of HE is (Ex. P54 in 2nd already late.
suit) Email dated Plaintiff Defendant HE ready for testing and plaintiff to intimate for 06.07.2010 carrying out the inspection. At 8:46 PM (Ex. P32 in 2nd suit) Email dated Defendant Plaintiff Reiterating that the power panels are not within the 07.07.2010 scope of PO.
(Ex. P33 in 2nd suit) Email dtd. Defendant Plaintiff First HE available Defendant asserted that electric 11:43 AM for inspections of panels are separate from HE 09.07.2010 the plaintiff, raw order.
(Ex. P11 in 1st material for second
suit and Ex. set available and
P35 in 2nd suit) manufacturing
initiated and
plaintiff to finalize
packers for first
HE. Drawings for
required electric
panel awaited.
Email dtd. Plaintiff Defendant Drawing of electrical panel of Rajkot HE provided,
At 5:48 PM availability and fitting of impellers and bird nets to be
09.07.2010 confirmed by defendant and assurance given for
(Ex. P12 in 1st inspection ASAT
suit and Ex.
P36 in 2nd suit)
Email dtd. Plaintiff Defendant Revised diagram of electrical panel for HE provided.
13.07.2010
(Ex.P38 in 2nd
suit)
Email dtd. Defendant Plaintiff Clarifications sought regrading BOM as no BOM
14.07.2010 given in the drawings, the required thickness etc.
(Ex. P13 in 1st
suit and P39 in
2nd suit)
Email dtd. Defendant Plaintiff Quotation for electrical panel for HE provided.
15.07.2010
at 12:20 PM
CS DJ 565/2016 7772/16
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.21 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2026.04.13 KAUR 17:03:38 +0530 (Ex. P40 in 2nd suit) At 01:02 PM Plaintiff Defendant Informing that due to high price quoted by defendant, Email dtd. the panel will be fabricated and wired by plaintiff itself.
19.07.2010 (Ex. P15 in 1st suit and Ex.
P43 in 2nd suit) At 14:09 PM Defendan Plaintiff Informing that It implies that plaintiff wanted Email dtd. t panels are not scope defendant to provide panels, 19.07.2010 of purchase order despite taking the plea during (Ex. P15) in 1st and as per purchase trial that panels are different suit. order defendant will from HE order.
provide only isolator
switches (safety
switches).
At 15:46 PM Plaintiff Defendant Insistence to provide To supply Starters for
Email dtd. Star Delta Starters, completion of HEs.
19.07.2010 in place of DOL
(Ex. P15 in 1st Starter with
suit and Ex. reminder of the
P44 in 2nd suit) delay in DP for the
first HE.
At 06:15 PM Defendan Plaintiff DOL Starters not Defendant raised the concern
Email dtd. t part of PO, still that plaintiff is insisting upon
19.07.2010 provided as a supplying the items which were
(Ex. P45 in 2nd gesture. Star Delta never part of initial requirement.
suit) Starters can't be (no rebuttal by the plaintiff).
procured being out
of PO. Request to
release the complete
payment. HE
completed only
placement of
isolators to be
confirmed by the
plaintiff.
After protest by defendant - No contact by plaintiff to defendant for 8 days, at the initial stage when PDIs started.
Email dtd. Defendan Plaintiff HE completed. PDI awaited. Request to release the 27.07.2010 t payment.
At 10:51 AM (Ex. P47 in 2nd suit) Email dtd. Plaintiff Defendant Point to be noted during PDI. 27.07.2010 At 03:56 AM (Ex. P48 in 2nd suit) CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.22 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:03:43 +0530 Clearly, plaintiff itself was complicating the transaction because if power panels were different from HE order, then why plaintiff kept insisting the defendant to provide the same as if it was part of PO. It corroborates the defence of defendant that plaintiff itself created hindrance in execution of contract or performance of contract by the defendant.
It is also interesting to note that during this period when the dispute between parties as to power panel commenced, plaintiff conducted first surprise inspection on 14.07.2010 (as admitted by plaintiff in the second suit). Then defendant also raised voice that plaintiff was going beyond the scope of purchase order and thereafter plaintiff had not protested the same rather all of sudden plaintiff started insisting upon PDI and first official PDI was conducted on 31.07.2010.
28. Further, admittedly, the work of panel was separate from HE order as clearly mentioned in the email communication dated 01.07.2010 (Ex. P28 in 2nd suit). However, it is not clear as to why plaintiff gave the work of panel to the defendant when as per plaintiff, defendant was already legging behind the schedule and had already failed to deliver the product within the time scheduled.
29. The relevant emails between parties with respect to PDIs are as follows:
Email dtd. Plaintiff Defendant Pointing out the deficiencies found during PDI on 03.08.2010 31.07.2010.
At 1:08 PM (Ex. P58 in 2nd suit) Email dtd. Plaintiff Defendant Providing the layout of cables and conduith for HE. 12.08.2010 CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.23 of 41 Dated: 13.04.2026 Digitally signed by PRABH PRABH KAUR DEEP DEEP Date:
KAUR 2026.04.13 17:03:47 +0530 (Ex. P58 in 2nd suit) 16.08.2010 Plaintiff Defendant Inspection carried on As per plaintiff overall finish, (Ex. P16 in 1st 31.07.2010, email by workmanship, quality -
suit and Ex. plaintiff to defendant unsatisfactory. Painting P61 in 2nd suit) sent on 30.07.2010 unprofessional. Steps for showing the point of improvement of appearance. unsatisfactory work.
Defendant asked not
to start fabrication of
second HE as
plaintiff was not
satisfied with the
work and quality of
first HE. Defendant
to inform the action
plan for
improvement and
reinspection date.
Email dtd. Defendant Plaintiff Assurance to As per insistence of plaintiff,
19.08.2010 enhance the finish steps for improvement of finish
(Ex. P17 in 1st /first look of HE. look initiated.
suit and Ex.
P61 in 2nd suit)
Email dtd. Plaintiff Defendant To intimate the date of re-inspection of first HE.
23.08.2010
(Ex. P18 in 1st
suit and Ex.
P62 in 2nd suit )
Email dtd. Defendant Plaintiff Re-inspection date as 27.08.2010 confirmed.
26.08.2010
(Ex. P19 1st
suit and Ex.
P63 in 2nd suit )
Email dtd. Plaintiff Defendant Defendant to fix reinspection call.
13.09.2010
( Ex. P64 in 2nd
suit )
Email dtd. Defendant Plaintiff Beautification of HE under process after visit of Mr.
17.09.20109(E Bachan Lal at Faridabad on 16-09-2010.
x. P64 in 2nd
suit.)
Email dtd. Plaintiff Defendant Alleging that defendant failed to rectify the first unit to
At 4:08 PM acceptable level despite giving sufficient time,
21.09.2010 complete order canceled and refund of advance of Rs.
(Ex. P19 in 9,12,000/- demanded.
first suit and
Ex. P-65 in 2nd
suit)
CS DJ 565/2016 7772/16
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KAUR 2026.04.13 17:03:53 +0530 Email dtd. Defendant Plaintiff The allegations of plaintiff refuted with allegations that At 17:02 PM first set is ready for delivery and raw material of 21.09.2010 second HE available and plaintiff to pay for that.
(Ex. P20 in first suit and Ex. P-66 in 2nd suit) Email dtd. Plaintiff Defendant Defendant asked to rectify the defect and get the first 29.09.2010 HE reinspected by 05.10.2010 failing which order to be (Ex. P21 in 1st canceled incomplete and advance to be refunded by suit and Ex. defendant.
P67 in 2nd suit ) Letter dated Defendant Plaintiff Admitting that there is delay but plaintiff also 30.09.2010 contributed in the same like continuous change in the (Ex. P68 in 2nd requirement till date.
suit) Letter dated Defendant Plaintiff Explaining the difficulties suffered at the hands of 01.10.2010 defendant.
(Ex. P69 in 2nd suit) Email dtd. Plaintiff Defendant Reinspection of first HE meant Rajkot to be conducted 04.10.2010 on 06.10.2010 at Faridabad. (Ex. P22 in 1st suit and Ex.
P70 in 2nd suit) Email dtd. Defendant Plaintiff The rectification under process and will not be 05.10.2010 completed before 16.10.2010. at 10:07 PM (Ex.P71 in 2nd suit) Email dtd. Plaintiff Defendant Justification not acceptable. Cancellation of second HD 05.10.2010 confirmed.
at 03:17 PM (Ex.P71 in 2nd suit) Letter dated Plaintiff Defendant Show cause notice As per plaintiff, it is an 22.10.2010 that why not to inspection report. Deficiency Inspection cancel the order as pointed in detail.
report defendant failed to (Ex. P23 in 1st provide supply of suit and Ex. satisfactory product. P72 in 2nd suit) Ex. PW-1/28 Email dated Defendant Plaintiff After visit of plaintiff on 18.10.2010 at work of 25.10.2010 defendant, appointment sought by the defendant. At 11:50 AM (Ex.P73 in 2nd CS DJ 565/2016 7772/16
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KAUR 2026.04.13 17:03:57 +0530 suit) Email dated Defendant Plaintiff Defendant visited plaintiff office but could not meet 25.10.2010 anyone. Appointment sought.
At 07:50 PM (Ex.P73 in 2nd suit) Email dated Plaintiff Defendant Meeting at 12 o'clock on 30.10.2020 at the office of 27.10.2010 plaintiff.
(Ex.P74 in 2nd suit) Letter dated Defendant Plaintiff No deficiency at first place despite that the few 30.10.2010 observations made by plaintiff were rectified at the (Ex. P24 in 1st extra cost not taken from plaintiff and plaintiff has been suit and Ex. asked to pay the balance due payment. P75 in 2nd suit) Letter dated Defendant Plaintiff Allegations upon the plaintiff to reject the goods of 30.10.2010 defendant in preplanned manner and plaintiff asked to (Ex. P76 in 2nd make the payment to defendant. suit) Emails dated Defendant Plaintiff. Seeking balance payment of Rs. 45,55,792/-. 02.11.2010, 11.11.2010, 13.11.2010, 15.11.2010, 16.11.2020 Ex. P78 to Ex.
P82 in 2nd suit) Letter dated Plaintiff Defendant The purchase order dated 30.03.2010 canceled and 15.11.2010 defendant to refund the advance payment. (Ex. P25 ) Thus, as per the email communications between parties, plaintiff conducted one PDI through its AR on 14.07.2010 and in the 2 nd suit plaintiff admitted that the PDI conducted on 14.07.2010 was a surprise inspection though in the email written by plaintiff to the defendant on 15.07.2010, plaintiff had stated that the inspection was conducted with due notice.
Vide email dated 15.07.2010 written by plaintiff to defendant, plaintiff stated that during the inspection on 14.07.2010, all the four coils of sub-heat exchanger were found assembled but headers were CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.26 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:04:02 +0530 not fabricated and motors, impellers and bird net were also not available. However, plaintiff had not prepared any report at the spot nor plaintiff had disclosed as to who conducted PDI on behalf of plaintiff on 14.07.2010. Plaintiff had not attached any photograph nor disclosed who was present at the spot on behalf of defendant.
30. Now, next inspection was conducted on 31.07.2010 and even with respect to PDI on 31.07.2010 no report had been prepared by the plaintiff though during entire cross examination PW-1 kept stating that its representative prepared a report. Later on during cross examination, PW-1 himself clarified that only one email dated 03.08.2010 Ex. P58 was written by the plaintiff to the defendant. In the said email dated 03.08.2010, plaintiff had provided one list pointing out the deficiencies found during PDI on 31.07.2010 in the HE fabricated by defendant. As per PW-1, the email was self explanatory. However, the same does not appear to be self explanatory because the deficiencies pointed out in the email dated 03.08.2010 were not pointed out after the first PDI conducted on 14.07.2010. Plaintiff has not clarified how new deficiencies or short comings arose in the second PDI conducted on 31.07.2010 and again plaintiff had not disclosed who conducted PDI on behalf of plaintiff and who present at the spot on behalf of defendant on 31.07.2010.
31. Further, even after email dated 03.08.2010, plaintiff had not terminated the contract. Rather vide email dated 12.08.2010 (Ex. P59 in the 2nd suit), defendant provided the layout of cables with conduits for P/S to motor of heat exchanger. And plaintiff had not objected to the same.
CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.27 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP KAUR DEEP 2026.04.13 Date:
KAUR 17:04:06 +0530 Thereafter, vide email dated 16.08.2010 plaintiff again stressed that the work done by defendant was unsatisfactory and defendant had been asked not to start fabrication of second HE. Interestingly, till now plaintiff had never asked about the status of second HE nor there was any communication between parties with respect to detailed designing or specifications of second HE.
32. Further, vide email dated 19.08.2010 (Ex. P61 in the 2 nd suit), defendant assured the plaintiff to enhance the finish /first look. Now the plaintiff had not objected to the said email stating that the specifications were not upto mark or that the defendant had failed to rectify the deficiencies found in PDI conducted on 31.07.2010.
Similarly there was one PDI conducted on 16.09.2010 and vide email dated 17.09.2010 (Ex. P64 in the 2nd suit), defendant communicated to the plaintiff that defendant was working on beautification of HE. The plaintiff again failed to object to the same stating that deficiencies were related to the basic structure of HE and not with respect to beautification only.
Thereafter, vide letter dated 22.10.2010 (Ex. P72 in the 2nd suit), plaintiff had sent a notice to the defendant and pointed out the deficiencies in the HE. On comparison between the list of deficiencies point out in the email dated 03.08.10 (Ex. P58) and the list of deficiencies mentioned in the letter dated 22.10.2020 (Ex. P72), it seems that some of the deficiencies mentioned in the email dated 03.08.10 had not been mentioned in the subsequent letter and in the subsequent letter, some new deficiencies had been mentioned. It seems that both parties were not at the same page with respect to the CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.28 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2026.04.13 KAUR 17:04:10 +0530 specifications of the heat exchanger and it also strengthens the defence of defendant that plaintiff pointed the discrepancies just to terminate the contract.
33. Further, the defendant had taken the plea that the deficiencies or discrepancies pointed out by the plaintiff were irrelevant and were not the part of the agreement between parties and the HE fabricated by the defendant was as per the design given by the plaintiff to the defendant.
Now the onus was upon the plaintiff to prove that the discrepancies and deficiencies pointed out by the plaintiff were not superficial shortcomings pointed out by the plaintiff just for the name sake. During cross examination PW-1 deposed that PW-3/Mr. I.S. Mehta and the technical team of the plaintiff had conducted PDI on different dates. However, plaintiff had not examined anyone from its technical team to prove that discrepancies pointed out by the plaintiff were as per the design and the deficiencies were so essential that without their rectification, HE was useless. Further, PW-3 Mr. I.S. Mehta had entered into witness box but he chose to keep silence qua the PDIs and he had not proved that the discrepancies pointed out by the plaintiff were not merely related to the beautification of the HE but were essential to the basic design of the HE provided by plaintiff to defendant.
34. Further, plaintiff has taken the plea that suit has been filed for recovery on the basis of indemnity bond.
As far as this plea is concerned, admittedly defendant had given indemnity bond to the plaintiff to indemnify the plaintiff, in case of non-supply of the HE. However, plaintiff cannot ask the defendant to CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.29 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:04:14 +0530 indemnify the plaintiff for the loss suffered by the action of the plaintiff itself. In other words, drawing the analogy from the principles of contributory negligence, the plaintiff cannot seek the damages for the loss accrued due to its own contribution to the failure of the contract.
35. Further, defendant has taken the plea that plaintiff had pointed out the deficiencies in the HE and kept suggesting new modifications as plaintiff wanted to wriggle out from the contract with the defendant because plaintiff had entered into contract with the third party whose design plaintiff liked more.
Now during cross examination, PW-1 had been asked to give the details as to who completed the fabrication of HE for the requirement of plaintiff. However, PW-1 had failed to disclose the details and plaintiff had not proved that during the relevant period plaintiff had not entered into contract with the third party as alleged by the defendant. Had the plaintiff had nothing to hide, plaintiff would have disclosed the details thereby proving that defendant had made false allegations upon the plaintiff.
36. Further, as per plaintiff, plaintiff had suffered losses at the hand of defendant because due to non-supply of HE by the defendant within time, third party had levied hefty liquidated damages upon the plaintiff. Now as far as this plea is concerned, perusal of record shows that AIR had given contract to plaintiff vide contract Ex. PW-21/1. The contract Ex. PW-21/1 contains and detailed list of items to be provided by plaintiff to AIR and the Heat Exchanger is at serial no. 3 which is as follows:
CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.30 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:04:18 +0530
(i) Dummy Load ( Soda water type)( (1650 KW RF power), with control panel, mains supply: 380V, 50Hz, 5 wires, 60 Ohm water resistor, water storage tank, water pump, flow meter, blower unit, motor controlled automatically flow control,micro processor for automatic calculation and display of output power, dry loop interlock circuit, pre-heating device (ii) Heat Exchanger for Dummy Load for dissipating 1650 KW RF power at 50 deg C. including cabling & tubing material control box for blowers.
Thus, HE was only one item amongst other items to be provided by the plaintiff to AIR. Now plaintiff had nowhere taken plea that plaintiff was ready with all remaining items and only because of non- supply of HE by the defendant, the contract with AIR could not be fulfilled. Plaintiff had not led any evidence to prove that the end user levied LD only because plaintiff could not supply HE while plaintiff supplied all the other items. When a contract consists of various acts to be performed, then the burden of prove is higher upon the plaintiff to prove that the entire contract failed because of failure of only one act. However, plaintiff had not proved the same and therefore, plaintiff cannot attribute the failure of entire contract to the defendant.
37. Further, from the perusal of record, it seems that both parties have not disclosed entire communication between parties and some information seems missing. Moreover, in the suit filed by plaintiff, plaintiff had not filed many emails which defendant filed in the 2 nd suit and plaintiff admitted the same during admission/denial of documents. In view of the above discussion, it is clear that plaintiff is not entitled to seek recovery of advance money paid by plaintiff to defendant nor plaintiff is entitled to recovery of LD levied by the end user or anyother damages from the defendant. Accordingly, issue no. 1 and 2 in first suit are decided against plaintiff and in favour of defendant. CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.31 of 41 Dated: 13.04.2026 Digitally signed PRABH by PRABH DEEP KAUR DEEP Date:
2026.04.13 KAUR 17:04:22 +0530
38. Issue-wise findings of the 2nd suit are as follows:-
The parties will be referred to their status in the 1 st suit for the sake of convenience.
Issue no. 2 of 2nd suit : Whether there is no privity of contract between plaintiff and defendant?OPD.
The onus to prove the said issue is upon the defendant in the 2 nd suit and thus, it is upon the plaintiff. 38(a) Plaintiff has taken repeated plea that plaintiff had no privity of contract with M/s Abacus Heat Transfer Ltd. as plaintiff had given the contract to M/s Abacus Engineering Company and even advance has been paid to the same. Now perusal of record shows that Email dtd. Defendan Plaintiff Work progress report Official intimation given to the 01.07.2010 t given with plaintiff regarding the fact that (Ex. P10 in 1st clarifications with the business of M/s Abacus suit and Ex. respect to fitting of Engineering has been transferred P28 in 2nd suit) all eight starters and to recently formed (Limited also informing that Company) named M/s Abacus Abacus Engineering Heat Transfer Ltd. and invoice to Company has been be raised in the same name.
transferred to M/s Abacus heat Transfer Ltd. (Plaintiff in CS No. 568/2016) + confirmation regarding fitment of Star Delta Starter sought.
Email dtd. Defendan Plaintiff Informing that M/s Formal intimation regarding 31.07.2010 t Abacus Engineering change in constitution of At 7:14 PM Company has been defendant given to plaintiff.
(Ex. P57 in 2nd taken over by M/s
suit) Abacus Heat
Transfer Ltd and PO
to be issued in that
name.
38(b) Interestingly, since 01.07.2010, plaintiff had the knowledge of the said fact and in all the subsequent communications, defendant had CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.32 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:04:26 +0530 represented itself as M/s Abacus Heat Transfer Ltd. but plaintiff had not objected to the same till filing of the suit. 38(c) It is also important to note that when quotation was given to plaintiff, it was not given by M/s Abacus Engineering Company but by Abacus Project Inc. and the same was signed by Mr. Vikram Sawhney/ DW-1 who mentioned himself as CEO. Thereafter, plaintiff confirmed the quotation and confirmation letter was addressed to M/s Abacus Engineering Company. Plaintiff had not clarified how plaintiff got to know about the change of Abacus Project Inc. to M/s Abacus Engineering company.
38(d) Further, even at the beginning of transaction with defendant, plaintiff had nowhere taken the details of the defendant as to whether defendant is a company or a proprietorship firm. In the plaint, plaintiff had stated that defendant is a company but DW-1 /Mr. Vikram Sawhney had deposed that at the time when the quotation of the defendant was accepted, M/s Abacus Engineering Company was a proprietorship firm and DW-1 was his proprietor. Though defendant has not filed anything on record to corroborate the plea, however, it is the plaintiff who had given contract to the defendant and therefore, plaintiff was required to do the due diligence and to take the relevant information or document on record. In absence of the same, the plea of the defendant is to be considered.
38(e) Further, as per plaintiff M/s Abacus Engineering Company is a limited company. Now if the said company has been taken over by another company and its name has been changed, then there should not be any issue because in commercial market, it is a very common CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.33 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:04:30 +0530 phenomenon where companies keep changing their names either after being taken by some other company or after merger etc. 38(f) Further, perusal of record also shows that Mr. Vikram Sawhney had always communicated with the plaintiff on behalf of defendant whether it was M/s Abacus Engineering Company or M/s Abacus Heat Transfer Ltd. Therefore, it seems that the contention has been taken by the plaintiff only for the name sake and most of the cross examination conducted only on the issue that plaintiff had no dealing with M/s Abacus heat Transfer Ltd., seems irrelevant and unnecessary. In view thereof, issue no. 2 in 2nd suit is decided in favour of defendant against the plaintiff.
39. Issue nos. 3 of 2nd suit Issue no. 3. Whether the suit for recovery has not been instituted through a duly authorized person? OPD The onus to prove this issue is upon the defendant in the 2 nd suit i.e. plaintiff in the 1st suit.
As per plaintiff, defendant has not instituted the suit to authorized representative. To prove the same, plaintiff has cross examined DW-1 /Sh. Vikram Sawhney at length.
On the other hand, defendant has denied the same. Perusal of communications between parties reveals that throughout the transactions between parties and even after filing of the suit, Mr. Vikram Sawhney had represented the defendant. Admittedly, plaintiff had always communicated with DW-1/Sh. Vikram Sawhney since beginning and even the quotation was given by Mr. Vikram Sawhney on behalf of defendant to the plaintiff. The purpose of CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.34 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:04:34 +0530 authorization is only to eliminate the probability that the company who being a legal entity needs human intervention for being represented in the Court, has no knowledge of the proceedings and one person does not take the benefit of the Court proceedings without the same being in knowledge of the company. Once it is established on record that Mr. Vikram Sawhney had always communicated with the plaintiff on behalf of defendant, then there is no question of authorization on behalf of company because during the transactions and prior to commencement of dispute between parties, plaintiff had never objected that Mr. Vikram Sawhney was not authorized to represent the defendant company. Accordingly, in view of findings upon issue no. 2 in the 2nd suit as well as in view of above discussion, issue no. 3 in 2nd suit is decided in favour of defendant against the plaintiff.
40. Issue nos. 1 and 4 of 2nd suit Issue no. 1: Whether the defendant is entitled to recover an amount of Rs.54,33,246/- from the plaintiff along with interest @ 18% per annum? OPP.
Issue no. 4: Whether the suit for recovery has been filed without any cause of action? OPD The onus to prove issue no. 1 is upon the plaintiff i.e. defendant in the 1st suit. and for the issue no. 4, onus is upon the defendant in the 2nd suit i.e. plaintiff in the 1st suit.
Both the issues have been taken together being interlinked and involving common discussion.
The defendant has filed the suit for recovery of contractual amount fixed for both HEs alongwith other charges. CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.35 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP KAUR Date: 2026.04.13 KAUR 17:04:37 +0530 Though as per defendant, suit has not been filed suit for damages, however, admittedly no HE was delivered to the plaintiff and still defendant wants to recover the contractual amount alongwith other charges from the plaintiff and thus, defendant wants to be in a position as if contract has been performed between parties which is the purpose of damages in the law of contract.
41. Considering the fact that admittedly HE was not supplied to the plaintiff and even as per defendant, the fabrication of HE was almost completed, the onus is upon the defendant to prove the extent to which one set of HE was completed.
To prove the same, defendant has relied upon the report and defendant has argued that even to plaintiff's own knowledge, material manufactured by the defendant was upto mark and to the satisfaction of the purchase order. It is yet another thing that the plaintiff wanted to wriggle out of the contract on one excuse or another, inasmuch as the contract stood awarded to a foreign vendor. As per defendant, quality of the material under dispute was self-explanatory inasmuch as upon plaintiff's request itself, defendant had got the material inspected from one of the reputed international 'industrial Inspection Agencies' i.e. M/s Bureau Veritas'. The report is self-explanatory and proved the malafide conduct of plaintiff.
42. Now as far as the report Ex.DW-1/28 relied upon by the defendant is concerned, during cross examination of DW-1 admitted that:
" that the inspection referred to in para no. 44 of my affidavit was carried out by Bureau Veritas for complete one day. It is correct that at the time of said/alleged CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.36 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP Date: 2026.04.13 KAUR KAUR 17:04:42 +0530 inspection none was present from the plaintiff side. No request was made by the plaintiff for the said inspection. It is correct that no prior information was given to the plaintiff in the said inspection. ........it is correct that in the written statement to the suit filed by the plaintiff, there is no reference of the said inspection. It is correct that defendant company had not supplied the alleged inspection report to the plaintiff after inspection......it is matter of record whether address of inspection authority is mentioned or not in the report.......the inspection was given to the said company after making due diligence and floating inquiry from the market, no consent was taken from the plaintiff company........ ......Q. what is the date of preparation of final inspection report?
Ans. 29.06.2011.
Q. Who prepared the final dimensional report? Ans. Bureau Veritas ....The report was prepared by Bureau Veritas on instructions of defendant which was given by me. The report was prepared at our workshop at Faribad address....I don't remember the name of the persons, officers of Bureau Veritas were present at the time of preparation of the final dimensional report......... it is correct that defendant had not filed the preliminary report which was prepared before inspection by Bureau Veritas. I was not personally present at the time of inspection. The report was not prepared in my presence. I don't know if any observation /rough sheet was prepared by Bureau Veritas at the time of inspection. I cannot so if any photograph or videography has been taken by the Bureau Veritas at the time of inspection. Vol. I was not present there. ......it is correct that in all inspection reports, timing of the inspections are not mentioned. It is correct that the name of person who were present at the time of inspection is not mentioned in Ex. DW-1/18....."
Thus, admittedly, the said inspection conducted by Bureau Veritas Company was not conducted in presence of plaintiff nor any information was given to the plaintiff to conduct the said inspection.
Admittedly, defendant has not examined anyone from Bureau Veritas Company to prove the said report. The said report has been CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.37 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:04:46 +0530 objected by the plaintiff, therefore, the onus is upon the defendant to prove the same. In absence of anyone coming forward from Bureau Veritas Company, the reliance placed by the defendant upon the inspection report, is of no use to the defendant, it being self serving evidence in favour of defendant.
43. Further, during cross examination, DW-1 deposed that:
"it is matter of record that I have not filed the bills for procurment of the raw material to complete the order of the plaintiff's company. Since the transaction is very old I am not in a position to trace the said bills. Q. Have you filed the statement of account maintained by the defendant company qua the plaintiff company? Ans. Yes. I think so. However, it is a matter of record. After seeing the record, witness states that the said statement was provided to plaintiff before filing the suit .......... in this regard I referred to my email dated 09.07.2010 wherein the attachment of perfoma and invoice enclosed which is Ex. DW1/19.......it is correct that I have not filed the statement of account......the claim amount mentioned in para no. 53 relates to year 2010. It is correct that the balancesheet/ profit loss of the said year of the defendant company for the year is not filed.......it is correct that the defendant company had not supplied any goods to the plaintiff company yet. Vol. Goods were ready for supply but plaintiff refused to take them instead canceled the order......."
Thus, admittedly, defendant has not filed any bill or any statement of account to prove to which extent the first set of HE was completed because admittedly the HE was almost completed but was yet to be assembled as asserted by the defendant itself throughout.
44. Further, as far as the second HE concerned, the defendant admitted that defendant had only procured raw material with respect to the second HE. Once defendant admitted that defendant had not commenced the fabrication of second HE, it is beyond reasonable CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.38 of 41 Dated: 13.04.2026 PRABH Digitally signed by PRABH DEEP DEEP Date: 2026.04.13 KAUR KAUR 17:04:51 +0530 understanding how defendant can claim the entire amount qua the second HE.
Further, admittedly defendant has not filed any bill nor has produced any statement of account to prove that defendant had actually procured the raw material for the second HE. Further defendant has not clarified at which place the defendant procured the material for second HE. Interestingly, even in the emails and letters, defendant had only mentioned that it procured the raw material for second HE but had not annexed the copy bill or invoices with the emails written by the defendant to the plaintiff at the relevant time period. Thus, clearly defendant has completely failed to prove that defendant had procured any raw material qua the second HE.
45. Further defendant had claimed that plaintiff assured the defendant that a sum of Rs. 6,75,036/- would be paid by the plaintiff to the defendant in future order and on the said assurance defendant had forgone the said amount in the purchase order of HEs.
Admittedly, there is no written contract /agreement with respect to the said assurance. Further, admittedly till service of legal notice upon the plaintiff, defendant had never raised the issue of said assurances during email communications between the parties despite the fact that parties were having regular communications through emails and letters. Moreover, defendant is claiming the amount of Rs. 65,036/- on the contingency of procuring future orders from the plaintiff and therefore, defendant cannot recover the amount arising out of contingent contract. Clearly, even if there was some assurance by the plaintiff to the defendant at any point of time, still it is not a CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.39 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:04:55 +0530 legally recoverable debt which defendant can recover from the plaintiff.
46. Further, defendant has sought recovery of Rs. 1,68,000/- towards the usage charges which the godown of defendant could have fetch for the period during which the HEs of plaintiff were stored in godown of defendant. As per defendant, HEs were made to order and were of no use to anyone else and hence could not be sold except as waster material. As per defendant, it was informed the plaintiff to pick up the end product but plaintiff failed to do so and therefore, plaintiff is liable to pay towards the cost of storage of the godown with the defendant.
As far as this plea is concerned, admittedly, the HE fabricated by the defendant was of no use to the outsider as admitted by PW-1 during cross examination. However, this also an admitted fact that end product was not completed and was yet to be assembled and thus, the contract was not completed. Therefore, defendant cannot ask the plaintiff to pay the storage charges.
Further, during cross examination, DW-1 admitted that:
"It is correct that there is no documents filed on the court record in respect of claim made in para no. 51 of my evidence affidavit (with respect to storage charges). It is correct that I have not made any payment of Rs. 1,68, 000/- as mentioned in para 51. Vol. The cost mentioned in 51 in the cost borne by the defendant company for the storage in its premises. I do not remember if fact regarding storage in premises of the defendant company in mentioned of the defendant company. However the said fact is mentioned in para 17 of notice dated 02.12.2010. Exh. P-95 is now exhibited as DW-1/P-
1. Para 17 in marked as Mark-x. It is correct that I have not filed any document that the goods were stored in the area of 2000 square yard for two hundred ten days. It is correct that for storage no payment was made to any third party. Vol. It CS DJ 565/2016 7772/16 MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.40 of 41 Dated: 13.04.2026 PRABH Digitally by PRABH DEEP KAUR signed DEEP Date:
KAUR 2026.04.13 17:04:59 +0530 was loss of opportunity and area for which storage charges has been claimed.
Moreover, admittedly defendant had sold the end product as scrapped and recovered an amount of Rs. 8,81,250/- and the said amount covers the cost of storage, if any.
In view thereof, defendant is not liable to recover any amount from the plaintiff. Accordingly, issue no. 1 and 4 of 2nd suit are decided in favour of plaintiff against the defendant.
47. RELIEF In view of the discussion above-stated, the 1st suit of the plaintiff filed against the defendant is liable to be dismissed and the second suit of the defendant filed against the plaintiff is also liable to be dismissed. Accordingly, both the suits are hereby dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly.
All the pending applications stand dismissed being not pressed upon. File be consigned to Record Room after due compliance.
Digitally signed by PRABH PRABH DEEP KAUR
DEEP KAUR Date: 2026.04.13
17:05:04 +0530
Typed to the dictation directly (Prabh Deep Kaur)
Corrected and announced District Judge-05
in the open court on South East/Saket Courts
13th April, 2026 New Delhi
CS DJ 565/2016 7772/16
MS BROADCAST ENGINEERING CONSULTANTS INDA LTD Vs. MS ABACUS ENGINEERING COMPANY (Main Suit) CS DJ 568/2016 10323/16 MS ABACUS HEAT TRANSFER LTD Vs. MS BROADCAST ENGG. CONSULTANTS INDIA LTD (Counter-Claim) Page No.41 of 41 Dated: 13.04.2026