Bangalore District Court
Devaraj D V vs Karnataka Rural Infrastructure ... on 28 August, 2024
1
Com.O.S.No.8367/2017
KABC170082342020
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH.83)
THIS THE 28th DAY OF AUGUST 2024
PRESENT:
SUMANGALA S BASAVANNOUR., B.COM, LL.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com. O.S. No.8367/2017
BETWEEN:
Devaraj.D.V, Aged
about 36 yeras, S/o D
Venkatesh, R/at # 12,
III stage, IV Block, 7th
C Main,
Basaveshwaranagar,
Bangalore - 560 079.
: PLAINTIFF
(Represented by Sri.
Ajith a Shetty-
advocate)
AND
2
Com.O.S.No.8367/2017
1. Karnataka Rural
Infrastructure
Development Limited
(KRIDL), A Government
of Karnataka
Undertaking,
represented by its
Managing Director, Dr.
R.Raju, Grameena
Abhivruddhi Bhavana,
4th and 5th Floor,
Ananda Rao Circle,
Bengaluru - 560 009.
2. Mr. Dinesh -
Assistant Engineer (AE),
KRIDL, "Sri Shiva Kumar
Swamy Nilaya"' No, 280,
59th Cross, 17th 'C' Main
Road, 3rd 'Y' Stage, Near
Bashya, Circle,
Rajajinagar, Bangalore -
560 010.
3. Mr. G.S. Manjunath-
Assistment Executive
Engineer (AEE), West
Zone BBMP Sub-
Division, KRIDL, "Sri
Shiva Kumar Swamy
Nilaya"' No, 280, 59th
Cross, 17th 'C' Main
Road, 3rd 'Y' Stage, Near
3
Com.O.S.No.8367/2017
Bashya, Circle,
Rajajinagar, Bangalore -
560 010.
4. MR. Nagaraj H-
Executive Engnieer (EE),
BBMP Division - 2,
KRIDL, "Sri Shiva Kumar
Swamy Nilaya"' No, 280,
59th Cross, 17th 'C' Main
Road, 3rd 'Y' Stage, Near
Bashya, Circle,
Rajajinagar, Bangalore -
560 010.
5. The Commissioner,
Bruhat Bengaluru
Mahanagara Palike,
Bengaluru - 560 001.
6. Sri. Chandrashekar
L, S/o Sri.
Lakshminarayana, Aed
about 42 years, Residing
At No. 17, 11th cross,
Pipeline, Vijayanagara,
Bengaluru - 560 040.
Died on 24.03.2023
(Since represented by
his LRs)
4
Com.O.S.No.8367/2017
6(a) Smt. Sumita, R, W/
o Late Chandrashekar, L,
Aged about 38 years.
6 (b). Master. Nitish
Shekar, S/o Late
Chandrashekar, L, Aged
about 15 years.
6(c). Master, Puneeth
Shekar, S/o Late
Chandrashekar, L, Aged
about 11 years.
(b) & (c) being minors
are represented by their
mother Smt. Sumitha. R
All three are R/at No.
17, 11th cross, Pipeline,
Vijayanagara, Bengaluru
- 560 040.
7. Sri. Jagadish B.M,
S/o Sri. Murthy, Aged
about 38 years, Residing
at No. 23, 2nd block,
Skyline Apartments,
Gangondanahalli,
Bengaluru - 560 072.
: DEFENDANTS
5
Com.O.S.No.8367/2017
(Defendant No. 1 to 4
represented by Sri. H.
Devendrappa -
Advocate, Defendant
No.5 represented by Sri.
Shivananda Meti -
Advocate and Defendant
No. 6(a-c) and 7
represented by Mr. H.T.
Vasanth Kumar -
Advocate)
Date of Institution of the 27.11.2017
suit
Nature of the suit (suit on
pronote, suit for declaration Suit for recovery of money
& Possession, Suit for
injunction etc.)
Date of commencement of
recording of evidence 01.07.2022
Date on which judgment
28.08.2024
was pronounced
Total Duration Year/s Month/s Day/s
06 09 01
(SUMANGALA S BASAVANNOUR),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
6
Com.O.S.No.8367/2017
JUDGMENT
This suit is filed by the Plaintiff praying to direct the defendants to pay the suit claim of Rs.1,71,20,985/- to the plaintiff being the aggregate of the amount due for the Works Orders I to V (Rs. 1,32,47,076) and the interest there on @ 12% (Rs.38,73,909) till the date of filing of this suit.
A Judgment and Decree awarding future interest thereon @ 12% per annum from the date of filing this suit till the payment of realization of the same.
2. The Brief facts of the Plaint are as follows:-
The plaintiff is a civil contractor by profession and has earned considerable repute over the lase several years in the State of Karnataka by executing contracts for the government and its subsidiaries. Based on the experience and track record of the plaintiff, he has been recognized as a 'Class-I' contractor in the records of various Government agencies inter-alia including the 'Karnataka Rural Infrastructure Development Limited' and 'Bruhat Bengaluru Mahanagara Palike, Defendants 1 to 5 herein.7
Com.O.S.No.8367/2017 The Defendant 1,2, 3 and 4 Karnataka Rural Infrastructure Development Limited is a Government of Karnataka undertaking tasked with a responsibility to undertake construction activities that are contracted out by t he Government of Karnataka and its functionaries, inter-alia including Bruhat Bengaluru Mahanagara Palike, Defendant 5 herein.
Defendants 1, 2, 3 and 4 have received the work order for the works detailed below from the Defendant 5 which was in turn completely executed by the plaintiff for Defendants 1 to 4. The work orders referred supra are detailed as under:
1. Asphalting to 17th Cross Road MRCR layout and surrounding area in Ward No. 125, hereinafter referred to as Work Order I.
2. Providing asphalt to I main road in between 5th Main Road MRCR layout and Magadi Main Road, Govindarajanagara in Ward No. 104, hereinafter referred to as Work Order II.
3. Asphalting to Binny layout and 3rd to 12th Cross Roads of Saraswathingara and surrounding area in Ward No. 125, hereinafter referred to as Work Order III.8
Com.O.S.No.8367/2017
4. Providing Asphalting to service Road and 6th main Road and MRCR layout in Ward No. 104, hereinafter referred to as Work Order IV.
5. Providing Asphalting to 17th and 18th Cross MRCR Layout in Ward No. 104 hereinafter referred to as Work Order V. The Plaintiff has executed the work orders mentioned supra to the full and final satisfaction of the Defendant No.5. The Plaintiff has invested his hard earned money and has raised capital by availing of loans to complete the work orders referred supra. However, there are amounts that are due to the Plaintiff from the Defendant 1 to 4 for the execution of work orders I, II, III, IV and V and the details of the same below:
Pertaining to Work Orders I,II and III a. That engineers of Defendant No.5 have inspected the works pertaining to work orders I, II and III that have been completed by the plaintiff and have also issued completion certificates that are recorded in the bill book of the Defendant 5 along with photographs of the completed work on 31.12.2014.9
Com.O.S.No.8367/2017 The Statement of eligible bills for payment from Defendant No.1 to 4 pertaining to the three work order I, II and III are detailed below:
Work Order Number Work Order I Work Order II Work Order III Work Order Estimate Rs. Rs. Rs. 99,00,00.00 59,00,000.00 35,00,000.00 Bills raised by Sri. Devaraj D.V Rs. Rs. Rs.
64,75,756.00 38,37,754.00 1,08,89,340.00 Net amount payable after Rs. Rs. Rs. 93,88,717.00 deductions 55,59,298.00 33,01,663.00 IT (TDS) Rs. 1,29,515.00 Rs. 76,755.00 Rs. 2,17,788.00 KST Rs. 2,59,030.00 Rs. 1,53,510.00 Rs. 4,35,576.00 CBF Rs. 6,475.00 Rs. 3,837.00 Rs. 10,889.00 WWF Rs. 64,757.00 Rs. 35,000.00 Rs. 99,000.00 Deduction under various heads LR Rs. 34,696.00 Rs. 15,375.00 Rs. 38,500.00 FINE Rs. 1,000.00 Rs. 2,100.00 Rs. 1,000.00 FSD Rs. 4,20,925.00 Rs. 2,49,454.00 Rs. 6,97,810.00 RTGS Rs. 60.00 Rs. 60.00 Rs. 60.00 The net amount after deductions payable to the Plaintiff for the three work order would be as follows:
Work Order I Net Payable Amount: Rs. 55,59,298 + Rs. 1,82,49,678.00 Work Order II Net Payable Amount Rs. 33,01,663.00 + Wrok Order III Net Payable Amount Rs. 93,88,717.00 + Service Charges of 10% to be deducted from the Net Rs. 18,24,968.00 Payable amount bt the Defendants 1 to 4 Total amount due to the Plaintiff after deductions Rs. 1,64,24,710.00 10 Com.O.S.No.8367/2017 The amount that are deducted and held under the head 'Fixed Security Deposit' were to be returned to the plaintiff after the completion of one year of the execution of the three work orders and these amounts are also due to the plaintiff. The total amount that is due under the head 'FSD' for the above three work orders is detailed below:
Work Order I : FSD Amount Rs. 4,20,925/-
Work Order II : FSD Amount Rs. 2,49,454/-
Work Order III : FSD Amount Rs. 6,97,810/-
Total amount due under 'FSD' for work orders Rs.13,68,189/- I, II and III As would be apparent from facts mentioned supra, the total amount due to the plaintiff for the work orders I, II and III would be Rs. 1,64,24,710/- + 13,68,189/- = Rs. 1,77,92,899/-.
The details of the Tax deduction at Sources as claimed by the Defendants 1 to 4 and the tax credit is available to the plaintiff from the Income Tax Authorities for the Assessment year 2017-2018 are given below:
SL Work Order Number Tax deduction at Sources Actual Tax Deduction at
No. (TDS) claimed by source reflected in the
Defendants 1 to4 Form 26 AS for the A.Y
2017-2018 from
Defendants 1 to 4.
11
Com.O.S.No.8367/2017
1 Work Order I Rs. 1,29,515/- Rs. 37,240/-
2 Work Order II Rs. 76,755/-
3 Work Order III Rs. 2,17,788/-
Total Tax Deducted at source Rs. 4,24,058/- claimed by Defendants 1 to 4.
Balance Amount due to the Plaintiff under the head 'IT Rs. 3,86,818/- (TDS)' since the same has not been remitted to the Income Tax Authorities (Rs. 4,24,058 - Rs. 37,240/-) The above amount of Rs. 3,86,818/- is also due to the plaintiff and is in addition to the amount of Rs. 1,77,92,899/-
that is also due to the Plaintiff. The Plaintiff has received a total amount of Rs. 1,54,34,261/- till date as shown below:
Description Amount Amount received by the Plaintiff Rs. 93,44,850/- Amount received by Sri. D.V. Jayaprakash Rs. 37,67,540/- (brother of the Plaintiff) Amount received by "Sapthagiri Asphalts" Rs. 23,21,871/- Company (vendor of the plaintiff) Total amount received by the Plaintiff Rs. 1,54,34,261/-
An amount of Rs. 93,44,850/- vide cheques drawn on corporation Bank, SC Road Branch, Bangalore dated 17.03.2017 have been credited to the Plaintiff's Bank account bearing number 231701500244, ICICI Bank, Chandra Layout branch, Bangalore by the Defendant 1 to 4.
12Com.O.S.No.8367/2017 An amount of Rs. 37,67,540/- vide cheques drawn on Corporation Bank, Sc Road Branch, Bangalore dated 17.03.2017 have been remitted to the Bank account of Sri. D.V. Jayaprakash (brother of the Plaintiff), account bearing number 231701510064, ICICI Bank, Chandra Layout branch, Bangalore by the Defendants 1 to 4. An amount of Rs. 23,21,870/- vide cheques drawn on Corporation Bank, SC Road Branch, Bangalore dated 17.03.2017 were issued in t he name of Sapthagiri Asphalts Company by Defendants 1 to 4 and have been realized.
The Plaintiff further contended that the Defendant No.3 and 4 have secured the Plaintiff's signature on a bill voucher for a cheque bearing number 281679 dated 17.03.2017, drawn on corporation Bank, SC Road Branch, made out in favour of the Plaintiff. However, the cheque was never physically handed over to the plaintiff.
The balance amount that is due to the plaintiff for the execution of the work order I,II and III is given below:
Balance Amount due for the execution of the work orders I,II and III Rs. 27,45,456/- (Rs. 1,81,79,717 - Rs. 1,54,34,261) Pertaining to the Work Orders IV and V. 13 Com.O.S.No.8367/2017
(a) The Engineers of Defendant 5 have inspected the works pertaining to work order IV and V that have been completed by the plaintiff and have also issued completion certificates that are recorded in the bill book of the Defendant 5 along with photographs of the completed work on 30.06.2015.
(b) The statement of eligible bills for payment from Defendants 1 to 4 pertaining to the work orders IV and V are detailed below:
Work Order Number Work Order IV Work Order V Work Order Estimate Rs. 68,00,000.00 Rs. 48,00,000.00 Bills raised by Sri. Devaraj D.V Rs. 70,09.344.00 Rs. 52,44,910.00 Net amount payable after Rs. 60,05,288.00 Rs. 44,96,944.00 deductions IT (TDS) Rs. 1,40,187.00 Rs. 1,04,898.00 KST Rs. 2,80,374.00 Rs. 2,09,796.00 CBF Rs. 7,009.00 Rs. 5,244.00 WWF Rs. 68,000.00 Rs. 48,000.00 Deduction under various LR Rs. 42,994.00 Rs. 29,374.00 heads FINE Rs. 1,825.00 Rs. 9,675.00 FSD Rs. 4,63,607.00 Rs. 3,40,919.00 RTGS Rs. 60.00 Rs. 60.00
(c) The net amount after deductions payable to the plaintiff for the work orders referred supra would be as follows:14
Com.O.S.No.8367/2017 Work order IV : Net amount payable Rs. 60,05,288.00 Work order V : Net amount payable Rs. 44,96,944.00 Net amount due for work orders IV and V Rs. 1,05,02,232.00 Service Charge of 10% levied by Rs. 10,50,223.00 Defendant 1 to 4 Total amount due to the Plaintiff after Rs. 94,52,009.00 deductions The amounts that are deducted and held under the head 'FSD' were to be returned to the plaintiff after the completion of one year of the execution of the three work orders and these amounts are also due to the plaintiff. The total amount that is due under the head 'FSD' for the above three work orders is detailed below:
Work Order IV :FSD Amount Rs. 4,63,607/-
Work Order V : FSD Amount Rs. 3,40,919/- Total Amount due under the head FSD for Rs. 8,04,526/- work orders IV and V That as would be apparent from facts mentioned supra, the total amount due to the plaintiff for the work orders IV and V would be 94,52,000 + Rs. 8,04,526 = 1,02,56,535/-. The details of the Tax deduction at source as claimed by Defendant 1 to 4 and the tax credit that is available to the plaintiff from 15 Com.O.S.No.8367/2017 the Income Tax Authorities for the Assessment year 2017 -
2018 are given below.
SL Work Order Number Tax deduction at Sources Actual Tax Deduction at
No. (TDS) claimed by source reflected in the
Defendants 1 to4 Form 26 AS for the A.Y
2017-2018 from
Defendants 1 to 4.
1 Work Order IV Rs. 1,40,187/- Rs. 0.00/-
2 Work Order V Rs. 1,04,898/-
Total Tax Deducted at source Rs. 2,45,085/- claimed by Defendants 1 to 4.
Balance Amount due to the Plaintiff under the head 'IT Rs. 2,45,085.00 (TDS)' (Rs. 2,45,085 - Rs. 0.00) The amount of Rs. 2,45,085.00 referred supra is also due to the plaintiff and is in addition to the amount of Rs. 1,02,56,535/- that is also due to the plaintiff. He has not received any amount from Defendant 1 to 4 for the execution of work order IV and V. The total amount that is due to the Plaintiff from KRIDL for the execution of the five work order viz., I, II, III, IV and V is detailed below:
Amount due to the plaintiff from Defendants 1 Rs. 27,45,456/- to 4 from execution of work orders I,II and III. Amount due to the Plaintiff from Defendant 1 to Rs. 1,05,01,620/- 4 from execution of Work Orders IV and V. Total amount due to the plaintiff from Rs. 1,32,47,076/-
Defendant 1 to 4 for the execution of work order I, II, III, IV and V. 16 Com.O.S.No.8367/2017 The repeated requests and demands of the plaintiff to the Defendant 1 to 4 to make good the above sums has gone in vain and left with no other alternative, the plaintiff got issued a legal notice upon the defendants 1 to 4 on 26.08.2017 whose receipt has been duly acknowledged. The Plaintiff in compliance with Section 80 of the CPC has instituted this suit after the expiration of two months after acknowledgment of he legal notice caused upon the Defendant.
Defendant No.5 has an integrated Financial Management System which is accessible over the internet via the address :
http:218.248.45.166:8092/vssWB to everyone at large without any restrictions. This system has all the details of the Work Orders I,II,III, IV and V in terms of the Sanction letter, the Agreement between Defendant 1 to 5, the estimates, photos of the work, completion certificate, inspection report, the payments done by Defendant 5 to Defendant 1 to 4 etc., The Plaintiff further contended that the plaintiff hereby seeks interest on the amounts that are due from Defendants 1 to 4 @ 12% per annum till the date of filing this suit. With interst on 27,45,456/-, being the amount due for the execution of the work orders 1 to 3 from 31.12.2014 amounting to 17 Com.O.S.No.8367/2017 Reasons assigned in the affidavit satisfactory.. 9,33,456/- and interest on Rs. 1,05,01,620/-, being the amount due for the execution of the work order IV and V from 30.06.2015 amounting to Rs. 29,40,453/-.
The Defendants 1 to 4 have already received the monies for the work order I to V from Defendant No.5 via RTGS as detailed below and with a malafide intention have not made the payments to the plaintiff.
Work Order No. RTGS Details/Date on which money has been received.
Work Order I 000179/ January 28th 2017.
Work Order II 000190/ February 17th 2017.
Work Order III 000179/ January 28th 2017.
Work Order IV 000174/ August 08th 2017.
Work Order V 000174/ August 08th 2017.
3. The Defendant No.1 to 4 filed written statement stating that the suit filed by the plaintiff is not maintainable either in law or on facts of the case. That since the plaintiff has approached this court in maintaining the present suit by suppressing the material facts, the suit on hand deserves to be dismissed in-limine.18
Com.O.S.No.8367/2017 The Defendant further contended that though it is a fact that these defendants have received the work order from the defendant No.5, no work order was assigned to any third parties muchless in the name of the plaintiff herein. The work orders referred in these paras do require some comments in view of the fact that the work order 1 to 3 were assigned and the said works were completed by the plaintiffs as a group leader and the remaining works namely work order 4 and 5 were completed by the firm called "Shri Banashankari Asphalt", in which firm the plaintiff is also one of the partner. The work order shown at Sl NO. 4 and 5 are the works assigned to Shri Banashankari Asphalt firm and these are the works executed by the said firm but not by the plaintiff individually as claimed by him.
The Defendant further contended that the Defendants No. 1to 4 received the work order for the works I to V as shown in the plaint from the 5th Defendant. Upon entrustment of the said works by the 5th Defendants to these defendants 1 to 4, the three works orders namely work order 1 to 3 were completed on 31.12.2014, 31.12.2014 and 12.01.2015 respectively. Upon completion of the said three works the plaintiff laid a claim for release of the amount covered under the bills for having 19 Com.O.S.No.8367/2017 completed the works on 17.03.2017. Upon verification of the claim made by the plaintiff, these defendants released the amount for the three works in favour of the plaintiff. These defendants received a deed of partnership along with a letter dated 17.04.2017 submitted by one Shri Banashankari Asphalt firm, stating that the remaining works shown at work order 4 and 5 have been completed by the partners of the Shri Banasahnkari Asphalt firm and the payment concerning the work order and its completion shall be made to the partners of Shri Banashaknari Asphalt, It is also needless to mention here that the plaintiff is also one of the partner of the said firm. The payments were not made either to the plaintiff or to the Shri Banashankari Asphalt firm as there was a dispute between the plaintiff and the Shri Banasahankari Asphalt firm. Moreso, these defendants were under bonafide doubt as to whom they should made the payment and that being the bonafide reason payment pertaining to these two works have not all been dispersed either to the plaintiff or to the Shri Banashankari Asphalt firm. When the dispute between these two did not materialise, the entire issue of payment was withheld by these defendants, resulting in requesting for constituting a technical committee to resolve the issue for payment of the amount.
20Com.O.S.No.8367/2017 The Defendant further contended that the technical committee headed by the Superintendent Engineer, KRIDL was constituted to hear the grievances of both the parties. That though several letters/notice were issued to both parties, the plaintiff herein remained absent inspite of service of notices on him and as such the committee after verifying the available records in the office of these defendants and also after verifying the records submitted by the Shri Banashankari Asphalt firm, was pleased to submit a report holding that Shri Banashankari Asphalt firm is entitled to claim the amount in respect of the work order 4 and 5. The above suit also fails on the ground of non-joinder of necessary parties. In view of the fact that the Plaintiff knowing fully well about the Shri Banashankari Asphalt firm and its partners and also its entitlement to claim the amount for having completed the works by the firm. In view of the report the technical committee to make the payment to Shri Banashankari Asphalt firm, in respect of the works order 4 and 5, these defendants are supposed to respect the report of the technical committee and as such the plaintiff does not have any right or whatsoever in respect of the payment concerning work order 4 and 5 as long as the report of the technical committee remains in force. Hence, defendants prays to dismiss the suit.
21Com.O.S.No.8367/2017 The Defendant No.6 and 7 they have filed written statement same was rejected on the ground that they have not filed with in stipulated time of 120 days of Commercial court Act.
4. Heard arguments and perused the records.
5. Based on the above pleadings, the following Issues arise for my consideration :-
1. Whether the Plaintiff proves that the Plaintiff has right to recover the amount due for the work orders 1 to 5 (1,32,47,076.00) from the Defendant as prayed in this suit ?
2. Whether the Suit is bad for non-joinder of necessary parties ?
3. Whether the Plaintiff proves that Defendant is liable to pay sum of Rs. 1,32,47,076.00 and with interest thereon 12% per annum (Rs. 38,73,909) ?
4. Whether the Plaintiff is entitled future interest 12% per annum from the date of suit till the realization ?
5. Whether the Plaintiff is entitled for the reliefs as prayed ?22
Com.O.S.No.8367/2017
6. What Order or decree ?
6. My findings on the above Issues are as under:
1. Issues No.1 In the Partly Affirmative.
2. Issues No.2 In the Negative
3. Issues No.3 In the Negative
4. Issues No.4 In the Negative
5. Issues No.5 In the Partly Affirmative.
6. Issues No.6 As per the final Order for the following reasons.
REASONS
7. ISSUE No:1, 3 and 4: Since these issues are interlinked with each other, they are taken together for discussion, to avoid repetition.
7 (a). It is the case of the Plaintiff that the Defendants No. 1 to 4 have received the work order for the works order No. 1 to 5 from the Defendant No.5 which was in turn completely executed by the Plaintiff for Defendants 1 to 4. The Plaintiff has executed the work order 1 to 5 to the full and final satisfaction 23 Com.O.S.No.8367/2017 of the Defendant No.5. The Plaintiff has invested his hard earned money and has raised capital by availing of loans to complete the work orders. However, there are amounts that are due to the Plaintiff from the Defendants 1 to 4 for the execution of work orders I to V.
8. The plaintiff to substantiate his case, the Plaintiff himself examined as Pw1. Pw1 in his evidence reiterated the averments of the plaint and got marked Ex.P1 to P33. The facts elicited during cross-examination is to be considered herein after at appropriate stage.
9. The plaintiff also examined one witness as PW.2. But later the Plaintiff had filed application by stating that, in view of the exhaustive evidence of PW.1, evidence of PW.2 is not required and this application is came to be allowed.
10. On the other hand the officials of the Defendant No.1 examined as Defendant No.1 to 3 examined as Dw1. Dw1 to Dw.3 in his evidence reiterated the averments of the written statement and got marked Ex.D1 to Ex.D32. The facts elicited during cross-examination is to be considered herein after at appropriate stage.
24Com.O.S.No.8367/2017
11. In this case it is evident on the record that there is no contract between the Plaintiff and Defendant No. 1 to 4 for performing work order No. 1 to 5. Further there is no contract between the Plaintiff and Defendant No.5 regarding the work order No. 1 to 5. It is an admitted fact that the Defendant No. 1 to 4 have received the work order from the Defendant No.5 and also undisputed fact that the Plaintiff has executed work order No. 1 to 3.
12. It is the case of the plaintiff that the engineers of Defendant No.5 have inspected the works pertaining to work orders 1 to 3 that have been completed by the plaintiff and have also issued completion certificates that are recorded in the bill book of the Defendant No.5 along with photographs of the completed work on 31.12.2014. The Statement of eligible bills for payment from Defendants 1 to 4 pertaining to the work order 1 to 3 would be Rs. 1,64,24,710+ FSD amount for work order 1 to 3 of Rs. 13,68,189 the total amount of Rs. 1,77,92,899. Further he has stated that the total tax deduction at sources as claimed by the Defendants 1 to 4 of Rs. 4,24,058 and actual tax deduction at source reflected in the form 26AS for the Assessment year 2017-2018 from Defendants 1 to 4 of 25 Com.O.S.No.8367/2017 Rs. 37,240/-. The balance amount due to the Plaintiff under the head IT (TDS) since the same has not been remitted to the Income Tax Authorities(Rs. 4,24,058 - 37,240) it comes 3,86,818/-. The said amount of Rs. 3,86,818 is also due to the plaintiff and is in addition to the amount of Rs. 1,77,92,899/- is also due to the plaintiff. Therefore the total amount due to the plaintiff is 1,81,79,717/-. Out that the plaintiff has received a total amount of Rs. 1,54,34,261/-. The amount due to the plaintiff from Defendants 1 to 4 from execution of work orders 1 to 3 is Rs. 27,45,456/-. Towards work order No. 1 to 3.
13. On the other hand the Defendant contention that in view of the work order 1 to 3 were assigned and the said works were completed by the plaintiffs as a group leader and the work completed on 31.12.2014, 31.12.2014 and 12.01.2015. Upon completion of the said three works the plaintiff laid a claim fore release of the amount covered under the bills for having completed the work on 17.03.2017. Upon verification of the claim made by the plaintiff, these defendants released the amount for the three works in favour of the plaintiff. The BBMP had retained an amount of Rs. 13,68,189/- towards FSD pertaining to work 1 to 3, it was done so because if any defects that were found out in the works undertaken in the 26 Com.O.S.No.8367/2017 construction, the same would be utilized by KRIDL to carry out the repair works as agreed. Since there were repair works which were noticed after completion of works, the KRIDL thought of setting the repair works through the plaintiff. That since the plaintiff was not accessible and traceable by KRIDL, the said works were carried out through a contractor by name Chandrashekar and after completing the said works the payments have been made to them. The payment vouchers are produced as Ex.D. 27,28,29,30 and 31. The Plaintiff does not have any right over the FSD amount. The KRIDL has written reminder letters to the plaintiff to come and collect the remaining amount of Rs. 9,29,124/-.
14. On the contrary the DW.1 as stated that they have assigned the suit work order to the plaintiff in mutual understanding. Further, the Defendant has not produced any document to shows that the Plaintiff has carried out the work as a group leader. From the evidence placed before this court it is clear that the Defendant No.1 to 4 has assigned the work Order No. 1 to 3 to the Plaintiff and Plaintiff has completed the work order No. 1 to 3.
27Com.O.S.No.8367/2017
15. As above discussed the plaintiff has taken a contention that the balance amount is due to the plaintiff for execution of work order 1 to 3 is Rs. 27,45,456/- and FSD amount of Rs. 8,04,526/- and the balance amount under the head of IT (TDS) of Rs. 2,45,885/-. The Plaintiff has produced Ex.P.14 to 18. Ex.P.14 discloses that the final bill a gross amount of Rs. 64,75,756/- deduction 9,16,458/- and net amount of Rs. 55,59,298/-.
16. Ex.P.14 (a) Contract certificate discloses that the total final bill amount is 64,75,756/-, deduction towards IT 1,29,515 and deduction towards FSD 20,925/- adjustment amount of Rs. 9,16,458/- and total payment of Rs. 55,59,298/-.
17. Ex.P.15 (a) Contract certificate discloses that the total final bill amount is 38,37,754/-, deduction towards IT 7,67,755/- and deduction towards FSD 2,49,454/- adjustment amount of Rs. 5,36,091/- and total payment of Rs. 33,01,663/-.
18. Ex.P.16 (a) Contract certificate discloses that the total final bill amount is 1,08,89,340/-, deduction towards IT 2,17,788/- and deduction towards FSD 6,97,810/- adjustment 28 Com.O.S.No.8367/2017 amount of Rs. 15,00,623/- and total payment of Rs. 93,88,717/-.
19. Ex.P.17 (a) Contract certificate discloses that the total final bill amount is 70,09,344/-, deduction towards IT 1,40,187/- and deduction towards FSD 4,63,607/- adjustment amount of Rs. 10,04,056/- and total payment of Rs. 60,05,288/-.
20. Ex.P.18 (a) Contract certificate discloses that the total final bill amount is 52,44,910/-, deduction towards IT 1,04,898/- and deduction towards FSD 3,40,919/- adjustment amount of Rs. 7,47,966/- and total payment of Rs. 44,96,944/-.
21. From Ex.P.14 (a) to Ex.P.18(a) it clearly shows that the final bill is submitted in the name of KRIDL contract, no where in this final bill we could found the name of the plaintiff. It is an evident that there is no contract in between the plaintiff and Defendant No.5 BBMP regarding work order No. 1 to 5 referred in the plaint. There is no agreement between the BBMP and Plaintiff there is no contractual agreement between the Plaintiff and Defendant and BBMP. Further it is also evident on the 29 Com.O.S.No.8367/2017 record that there is nothing in writing between the KRIDL and Plaintiff in respect of the work order 1 to 5. The DW.1 has clearly stated that they have assigned the work order No. 1 to 5 in the mutual understanding. Further the Defendants have produced two letters written by the Defendant to the Plaintiff, i.e., one by the Executive Engineer and another by Assistant Executive Engineer, both dated 04.08.2017, informing the plaintiff about not holding any FSD amount in the plaintiff's name for the three work order 1 to 3 and further, informed the plaintiff to come and collect the outstanding amount of Rs. 9,29,124/- on account of supply materials, labour payment, etc., within three days, failing which the Defendants shall not be held responsible for any legal consequences.
22. As above discussed in this case the BBMP i.e., Defendant No.5 have not been assigned the work order No. 1 to 3 to the Plaintiff. The BBMP, which have been assigned the work order 1 to 3 to KRIDL i.e., Defendant No. 1. But the Defendant No. 1 has assigned the work to the Plaintiff.
23. During cross-examination of Pw.1 admitted that The KRIDL is at liberty to entrust these works who are capable to do work i.e., the person who has having plant and machinery 30 Com.O.S.No.8367/2017 and other equipment to execute the work. Since he has capable to execute the work. So, the KRIDL execute the work. After completion of 3 works they have received a sum of Rs.1,54,95,586/- after deducting tax, cess, VAT, sales tax and FSD. But not having any control over the cess, tax, VAT and sales tax which are deducted in the bill amount. The BBMP has retained of Rs.13,68,189/- towards FSD amount pertaining to work order nos.1 to 3.
24. It is an admitted fact that the FSD amount is retained by the BBMP for 12 months after completion of the work. This 12 months period is called as 'Defect Liability Period'. During this period if any defects are found the said defects would be carried out by using the FSD amount.
25. During cross-examination of PW.1, the Defendant counsel suggested that during the liability period if any defects find in the work, the BBMP will be carried out the work from the contractor, who has executed the work, out of the FSD amount. Further the Pw.1 shown his ignorance regarding the payment of Rs. 2,69,488/- by the KRIDL to the Chandrashekar towards repair work of Work Order No.1 to 3 and also shown 31 Com.O.S.No.8367/2017 his ignorance regarding the fact that after deducting the 10% of service charges out of 13,66189/ and remaining amount utilized for repair work and KRIDL was paid amount Rs. 12,31,375/- to the Chandrasekhar.
26. The Pw.1/Plaintiff has admitted that there is no written contract between him and KRIDL regarding main contract work and repair work. After deducting the service charges of 10% of total due Rs.1,64,24,710/- for the execution of work order nos.1 to 3. They have received of Rs.1,54,955.86/-. The remaining amount of Rs.9,29,124/- still laying with the KRIDL.
27. In this regard the Defendant has produced Ex.D.28 the payment voucher it shows that the account 3020 wages amounting to Rs. 6,03,346/- and less TDS (Sub-Contractors- Income Tax) is Rs. 6,033/- total 5,97,313/- and it is contained the signature of the Assistant Executive Engineer and it does not contained the signature of the receiver. Ex.P.28 enclosed with the job work bill 'Asphalting to 17 th cross road, MRCR Layout and Surrounding Area in Ward No. 125. In ward No. 125 it discloses that the name of the group leader Chandrashekar, Certified that measurement were taken by him 31.03.2017 and recorded on pages 26 of measurement book 32 Com.O.S.No.8367/2017 No. 13332 and the work has been executed satisfactorily. The value of work done or supplies made as per applicable amount of Rs. 4,69,567/-, amount payable to group leader is Rs. 3,78,830/ and it contained the signature of the group leader and it is also discloses that the net financial effect amount of Rs. 3,78,830/-. In another Job work bill 'Asphalting to 1 st Main Road in between 5th main road MRCR Layout and Magadi Road Govindarajanagara in Ward No. 104 it discloses that the name of the group leader Chandrashekar, Certified that measurement were taken by him 31.03.2017 and recorded on pages 48 of measurement book No. 13332 and the work has been executed satisfactorily. The value of work done or supplies made as per applicable amount of Rs. 2,69,488/-, amount payable to group leader is Rs.2,24,516/ and it contained the signature of the group leader and it is also that the net financial effect amount of Rs. 2,24,516/-.
28. Ex.D.29 the payment voucher it shows that the account 3020 wages amounting to Rs. 6,28,029/- and less TDS (Sub- Contractors-Income Tax) is Rs. 6,280/- total 6,21,749/- and it is contained the signature of the Assistant Executive Engineer and does not contain the signature of the receiver and Ex.P.29 is also enclosed the job work bill 'Asphalting to Binny layout 33 Com.O.S.No.8367/2017 and 3rd to 12th cross roads of Saraswathinagara and Surrounding Area in Ward No. 125 it discloses that the name of the group leader Chandrashekar, Certified that measurement were taken by him 31.03.2017 and recorded on pages 34 of measurement book No. 13332 and the work has been executed satisfactorily. The value of work done or supplies made as per applicable amount of Rs. 7,69,021/- , amount payable to group leader is Rs. 6,28,029/ and signed the group leader and it is also that the net financial effect amount of Rs. 6,28,029/-.
29. From the above discussion it is clear that, during liability period FSD amount will be custody in the BBMP for a period of 12 months. It is also proved that the KRIDL as carried out repair work pertaining to Work Order Number 1 to 3 by utilizing FSD amount and it is also admitted fact that, before assigning the work order 1 to 3 to the plaintiff by the KRIDL there was no contract entered between Plaintiff and KRIDL. Further, it is an admitted fact and there is no written contract between the Plaintiff and KRIDL regarding main contract and repair work. From the document it is clear that the repair work carried out by one Chandrashekar and payments made to the Chandrasekhar out of FSD amount. Same was not denied by the Plaintiff, only has shown his ignorance. Under such being 34 Com.O.S.No.8367/2017 the case, the plaintiff has no right to challenge the repair work assigned by the KRIDL to one Chandrasekhar. The plaintiff has no right to claim the entire FSD amount of Rs. 13,68,189/-. The power of KRIDL prerogative to utilize the FSD amount to carry out the repair work. Hence, the Plaintiff is entitle to claim balance amount of 9,29,124/- on account of supply materials, labour payment, etc.,
30. It is an admitted fact that the 9,29,124/- is pending with Defendant No.1 to 4, they have no objection to release the amount of Rs. 9,29,124/- to the Plaintiff. Hence, by considering the above evidence on record in the absence of contract between the plaintiff and Defendant No.1 to 4, I hold that the plaintiff is entitle to claim the amount of Rs. 9,29,124/- on account of supply materials, labour payment, etc., towards work order No. 1 to 3.
31. The Plaintiff alleged that the Tax deducted at source and claimed the Defendant No 1 to 4 and actual tax deduction of source reflected in the form No. 26 AS for the AS 2017 -18 from Defendant No. 1 to 4. The work order No. 1 is Rs. 1,29,515, Work Order II is Rs. 76,755 and Work Order III is Rs. 2,17,788. The total tax deducted to the Plaintiff under the head 'IT (TDS)' since the same has not been remitted to the 35 Com.O.S.No.8367/2017 income tax authorities (RS. 4,24,058 - 37,240) total is Rs. 3,86,818/-.
32. During cross-examination Pw.1 admitted that he has not having any control over the cess, tax, VAT and sales tax which are deducted in the bill amount.
33. The Plaintiff being a contractor definitely he would have knowledge about the statutory deduction in the final bills. The deduction mentioned in Ex.P.14 to Ex.P.16 towards Income Tax, should go to the Income Tax Department and either the plaintiff or the KRIDL have any right to claim the amount which was deducted towards Income Tax and TDS. Further, the plaintiff himself admitted that he has not having any control over the cess, tax, VAT and sale tax which are deducted in the bill amount. Under these circumstances, the plaintiff is not entitle to claim the amount of Rs. 3,86,818/- under the Head of Income Tax deduction.
34. The Plaintiff also alleged that work order 4 and 5 have been completed completed by the Plaintiff and have also issued a completion certificate that are recorded in bill book of Defendant No.1 along with photographs is completed on 36 Com.O.S.No.8367/2017 30.06.2015. In respect to the work order No. 4 the work order estimate amount of Rs. 68,00,000/- bill raised by the plaintiff is Rs. 70,09,344 the net amount payable after deduction is Rs. 60,05,288/- and work order No.5 the work order estimate amount of Rs. 48,00,000/- bill raised by the plaintiff is Rs. 52,44,910/- the net amount payable after deduction is Rs. 44,96,944/- . The net amount due for work orders IV and V is RS. 1,05,02,232/- and the service charges of 10% levied by the Defendant No. 1 to 4 is Rs. 10,50,223/-, the total amount due to the plaintiff after deduction of Rs. 94,52,009/-.
35. The amounts that are deducted and held under the head 'FSD' were to be returned to the Plaintiff after the completion of one year of the execution of the three work orders and these amounts are also due to the plaintiff. The total amount that is due under the head of FSD for the said work orders. Work Order IV, FSD amount is 4,63,607/-, work Order V, FSD amount is 3,40,919/- the total amount due under the head FSD work Orders IV and V is RS. 8,04,526/-. The total amount due to the plaintiff for the work Orders IV and V would be 94,52,009+ 8,04,526 = Rs. 1,02,56,535/-.
36. On the other hand the Defendant has taken a contention that the defendants received a deed of partnership along with a 37 Com.O.S.No.8367/2017 letter dated 17.04.2017 submitted by one Shri Banashankari Asphalt firm, stating that the remaining work shown at work order IV and V have been completed by the partners of the Shri Banashankari Asphalt firm and the payment concerning the work order and its completion shall be made to the partners of Shri Banashankari Asphalt, It is also needless to mention here that the plaintiff is also one of the partner of the said firm. When the dispute between these two did not materialise, the entire issue of payment was withheld by these defendants, resulting in requesting for constituting a technical committee to resolve the issue for payment of the amount. The technical committee headed by the Superintendent Engineer, KRIDL was constituted to here the grievances of both the parties. That though several letters/notices were issued to both the parties, the plaintiff herein remained absent inspite of service of notices on him and as such the Committee after verifying the available records in the office of these defendants and also after verifying the records submitted by the Shri Banashankari Asphalt firm, was pleased to submit a report holding that Shri Banashankari Asphalt firm is entitled to claim the amount in respect of the work order IV and V.
37. During cross-examination of PW.1 admitted that the 38 Com.O.S.No.8367/2017 signature of the Partnership Deed and it is marked ast Ex.D.3 he has also admitted that the original VAT Registration Certificate and his photo and he also admitted that his name mentioned in the Dealer's Partner is marked as Ex.D.4 and Ex.D.5 and original Registration of Firm is marked as Ex.D.6. From these documents and evidence it is clear that the plaintiff is also one of the partners of the Shri Bhanashankari Asphalt firm. He has also stated that the remaining partners Sri.Chandrashekar, Sri.B.M.Jagadish and Sri.Pradeep Vadeyar are written a letter to KRIDL claiming amount in respect of work order nos.4 and 5 to be paid in the name of Banashankari Asphalt. Further he has stated that the partnership deed is executed after 5 to 6 months after completion of work order nos.1 to 5. Further he has stated that the work is completed on 29.06.2015. Further he has stated that when other partner of the Banashankari Asphalt approached the KRIDL for claiming the amount of work order nos.4 and 5, they have given the legal notice to the KRIDL and BBMP.
38. Perused the Ex.D.3 Partnership deed dated 19.05.2015 the name of partners i.e., Sri. Chandrashekar. L, Sri. Jagadish B.M, Sri. Pradeep Somashekar Wodeyar and Sri. Devaraj D.V is the present plaintiff. Ex.D.4 VAT registration certificate also 39 Com.O.S.No.8367/2017 contend the photographs of Ex.D.4 (a) and this certificate is valid from 25.11.2015 and Ex.D.6 the acknowledgment of Registration of firms dated 31.10.2015.
39. The plaint averments of the pliant discloses that the work order No.4 providing Asphalting to Service Road and 6 th main Road and MRCR layout in Ward No. 104 and Work Order No.5 providing Asphalting to 17th and 18th Cross MRCR Layout in Ward No. 104 and it also discloses that the Work Order No. 4 and 5 is completed on 30.06.2015.
40. During cross-examination of PW.1 stated that the work is completed on 29.06.2015, but the work order nos.4 and 5 has not undertaken by the partnership firm.
41. Ex.D.3 is clearly shows that the partnership firm is registered on 19.05.2015.
42. It is an admitted that the plaintiff is also one of the partner of the Shri Banashankari Asphalt and it is registered on 19.05.2015. The contention of the Plaintiff that the said work is not undertaken by the partnership firm. So, he has to establish that the work order No. 4 and 5 was not carried out by the partnership firm.
40Com.O.S.No.8367/2017
43. Since there was a dispute for payment of bill amount of work Order no. 4 and 5 between the plaintiff and Shri Banashankari Asphalt firm. The Defendant No. 1 to 3 have constituted the technical committee as per Ex.D.2 to clear the grievances of both parties on 23.09.2019. Though the Plaintiff has denied the service of 1st notice. But, from Ex.P.18 and 19 it is clearly shows that the technical committee has been served the notice on plaintiff and 2 nd notice dated 03.11.2017 issued to the plaintiff is also also has been served on the plaintiff as per Ex.D.22 and acknowledgment at Ex.D.23 and 3 rd notice dated 15.11.2017 issued to the plaintiff to appear before the committee on 21.11.2017 is also has been served as per Ex.D.24 and acknowledgment at Ex.D.25. Inspite of service of notice at Ex.D. 18, 22 and 24, the plaintiff has failed to attend before the technical committee. The pw.1 has clearly admitted that the address mentioned in the notice dated 03.11.2017 and 15.11.2017 and the cause title of the plaint are one and the same. Since, the plaintiff remained absent before technical committee. So, the technical committee passed an order to disburse the amount in favour of Shri Banashankari Asphalt. On the basis of the recommendation of technical committee KRIDL paid Rs. 1,01,60,345/- in favour of the Shri Banashankari Asphalt on 19.01.2019.
41Com.O.S.No.8367/2017
44. The partnership deed dated 19.05.2015 at Ex.D3 discloses that whereas the parties hereto have agreed to carry the business of Civil contract works and other business as may be mutually decided by them from time to time, and to do all other things, which are incidental, ancillary or conducive to the aforesaid objects.
45. The partnership is formed with the primary object of carrying on the business civil contract works dealing in construction, restructure and to do all other things, which are incidental ancillary or conducive to the aforesaid objects. The partnership may also undertake any other type of business activity as may be mutually decided upon by the partners from time to time. The partners shall contribute capital as and when required and the profit/loss of the partnership firm shall be distributed from Sri. Chandrasekhar L to 35% of age, Sri. Jagadish B.M to 25% of age, Sri. Devaraj D.V. to 35% of age and Sri. Pradeep Somashekar Wodeyar to 5% of Age.
46. Clause 15 discloses that: Management : That the partnership shall be managed and supervised by all the parties. However, all major decisions concerning the business shall be on mutual consent only. All the partners, shall be liable to do all the acts for the firm and to appear before any authority on 42 Com.O.S.No.8367/2017 behalf of the firm. However, any one partner shall also be entitled to appear before any authority on behalf of the firm and can do any act on behalf of the firm and can do any act on behalf of the firm, which shall be binding on all the partners.
47. Clause 17 : That all the acts, deeds and things done in good faith, by any one party or parties hereto, either done in his own name or in the name of the firm, in connection with or in furtherance of the partnership, shall be deemed to have done by him, on behalf of all the parties hereto and this partnership and the other parties shall be bound thereby.
48. From the above discussion it is proved that inspite of service of notice's the plaintiff failed to appear before technical committee and failed to participate in proceedings. This Act of the plaintiff creates estoppel by the conduct. The question is whether doctrine of estoppel by conduct can be invoked by the facts of the present case. The fact shows that in the technical committee constituted by the Defendant No. 1 to 4 for disbursement of bill amount of work order No. 4 and 5 and to resolve the grievances of the Plaintiff and Defendant No. 6 and
7. As above discussion, inspite of service of notice dated 23.10.2017 at Ex.D.18, 03.11.2017 at Ex.D. 22 and 43 Com.O.S.No.8367/2017 15.11.2017 at Ex.D.24 respectively summons has been served as per Ex.D.19, Ex.D.23 and Ex.D.25.
49. Inspite of service of notice of technical committee for 3 times. The Plaintiff failed to appear before the technical committee. So, the technical committee has passed an order and directed to disburse the amount in favour of the Shri Banashankari Asphalt. The act of the plaintiff failed to appear before the technical committee this conduct itself is create the estoppel of the conduct. So, the Plaintiff estopped by this conduct from challenging the order on technical committee.
50. From Ex.D.3 it clearly that the Plaintiff is one of the partners and partnership deed registered on 19.05.2015 and the disputed work order No. 4 and 5has completed on 29.06.2015 or 30.06.2015. In view of the partnership deed the any act of the partner either done in his name or in the name of the firm. In connection or furtherance of the partner shall be deemed to have done by him, on behalf of all parties of the partnership firm and the partnership and other parties shall be bound their by. Hence, the Plaintiff cannot claim amount in respect to the work order and 4 and 5 against Defendant No. 6 and 7.
44Com.O.S.No.8367/2017
51. As above discussed the Plaintiff and Defendant No. 6 and 7 are the partners of the Banashankari Asphalt the Plaintiff has raised the dispute against the payment of Work Order No. 4 and 5 against the Defendant No.6 and 7. So, it is dispute between the partners, so the Plaintiff has to take legal action as per the partnership act and he cannot entitle any relief in the present suit.
52. As above discussed the Defendant NO. 1 to 4 have admitted that they are liable to pay 9,29,124/- towards work order No. 1 to 3. Hence, the plaintiff is entitle to receive 9,29,124/- from the Defendant No. 1 to 4.
53. The plaintiff claimed interest at the rate of 12% on work Order No. 1 to 3 from the date of filing the suit and future interest there on at 12% per annum from the date of filing the suit till the payment of realization.
54. The perused the written statement the defendant himself now where stated that 9,29,124/- paid by the Defendant in respect of work order No. 1 to 3. But during cross-examination of PW.1 the counsel for the Defendant No. 1 to 4 suggested 45 Com.O.S.No.8367/2017 that the remaining remaining amount of Rs.9,29,124/- still laying with the KRIDL and Executive Engineer and Assistant Engineer given a reply stating that "do not have right on FSD amount and you remaining amount Rs.9,29,124/- and come collect the amount in any movement". So, it is clear that towards work order N. 1 to 3 is Rs. 9,29,124/- is laying with the Defendant No. 4. Hence the Plaintiff is entitle to 9,29,124/-.
55. Ex. D.1 tax dated 04.08.2017 the Defendant KRIDL Letter return to the plaintiff stated that as per the alleged of RS. 9,29,124/- is concerned as reported by AEE, you have been already asked number of times attend his office for settlement of pending payment due to do and also stated in this letter that they have instructed the plaintiff to attend the office or AEE immediately after the receipt of the said letter. The settled their claim to the extent of RS. 9,29,124/- only which is pending in their office and they have stated that if the plaintiff is not attended their office within 3 days after receipt of letter for settlement of the same. The office is not respond their other consequences out of them litigant approach.
46Com.O.S.No.8367/2017
56. So, it is clear that in the year 2017 itself the Defendant No.1 office is wrote a letter to the Plaintiff to collect the amount 9,29,124/-. The Plaintiff has not attended the office of the Defendant and failed to collect the amount of Rs. 9,29,124/-. Under these circumstances, the Plaintiff is not entitle to claim any interest on 9,29,124/-. So, the Plaintiff is also not entitle the future interest. Hence, I answer Issue No. 3 and 4 Negative, Issue No.1 Partly Affirmative.
57. Issue No.2 : The Defendant has taken a contention that the suit fails on the ground of non-joinder of necessary parties. In view of the fact that the Plaintiff knowing fully well about the Shri Banashankari Asphalt firm and its partners and also its entitlement to claim the amount for having completed the works by the firm. It is pertaining to note that, after filing the written statement plaintiff impleded partners of the Shri Banashankari Asphalt i.e., Defendant No. 6 and 7 in this suit. Under these circumstances, the suit is not hit by non-joinder of necessary party. Hence, I answer this issue in Negative.
58. Issue No. 5 : As above discussed, In issue No. 1,3 and 4 the plaintiff failed to prove that he has entitle to recover amount of Rs. 1,32,47,076/ from the Defendant. However, the 47 Com.O.S.No.8367/2017 plaintiff proved that is entitle to recover the 9,29,124/- towards FSD amount. Hence, I answer this issue Partly Affirmative.
59. Issue No.6 : -Therefore, I proceed to pass the following Order.
ORDER The Suit of the Plaintiff is decreed in part with cost.
The Defendant No.1 to 4 are directed to pay 9,29,124/- to the Plaintiff.
Draw decree accordingly.
The Office is directed to send copy of this Judgment to Plaintiff and Defendants to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
( Dictated to the Stenographer, typed by her directly on computer, verified and then pronounced by me in open Court on this the 28th day of August, 2024).
(SUMANGALA S BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
48Com.O.S.No.8367/2017 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PLAINTIFF P.W.1 DEVARAJ D.V. P.W.2 AKRAM PASHA LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Copy of the payment received by the plaintiff.
Ex.P.2 Copy of the payment received dated 17.03.2017 by the Sri.D.V.Jayaprakash. Ex.P.3 Certified copy of statement of account for a period from 01.03.2017 to 31.03.2017.
Ex.P.4 Certified copy of statement of account for a period from 16.03.2017 to 20.03.2017.
Ex.P.5 Certified copy of statement of account for a period from 16.03.2017 to 20.03.2017.
Ex.P.6 Certified copy of order in
W.P.No.6516/2020 (GM-CPC).
Ex.P.7 Certified copy of order in
W.P.No.9837/2020 (GM-CPC).
Ex.P.8 Copy of Form No.26AS for the assessment
year 2017-18.
Ex.P.9 Office copy of legal notice dated
26.08.2017.
Ex.P.10 to Ex.P.13 4 postal acknowledgments Ex.P.14 Copy of work order No.I (page nos.34 to
131).
49Com.O.S.No.8367/2017 Ex.P.15 Copy of work order No.II (page nos.132 to 196).
Ex.P.16 Copy of work order No.III (page nos.197 to 310).
Ex.P.17 Copy of work order No.IV (page nos.311 to 347).
Ex.P.18 Copy of work order No.V (page nos.348 to
422).
Ex.P.19 Envelop cover sent by the postal department.
Ex.P.20 Certified copy of the delivery records dated 25.10.2017.
Ex.P.21 Certified copy of the delivery records dated 09.11.2017.
Ex.P.22 Certificate under Section 65B of Indian Evidence Act.
Ex.P.23 Details of employment as Executive Engineer.
Ex.P.24 Details of employment as Superintendent
Engineer
Ex.P.25 Notification issued by KRIDL.
Ex.P.26 Copy of request letter.
Ex.P.27 Notes (9 pages)
Ex.P.28 Legal notice dated 06.01.2018
Ex.P.29 Notification dated 17.03.2017.
Ex.P.30 Circular dated 01.03.2014.
Ex.P.31 and 32 Guidelines.
Ex.P.33 Letter.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENDANT 50 Com.O.S.No.8367/2017 Ex.D.1 Nagaraj H. Ex.D.2 S.Dinesh Ex.D.3 G.S.Manjunath LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT Ex.D.1 Reply letter.
Ex.D.2 Reply letter.
Ex.D.3 and Partnership deed and signature Ex.D.3 (a) Ex.D.4 Vat Registration Certificate and Signature.
Ex.D.4 (a)
Ex.D.5 Dealer partner annexure.
Ex.D.6 Registration of firm.
Ex.D.7 WP No. 9837/2020.
Ex.D.8 Bank account.
Ex.D.9 Statement of amount.
Ex.D.10 Letter of authorization dtd.17.02.2023
Ex.D.11 Letter dtd.17.04.2017
Ex.D.12 Letter dtd.23.09.2017 proceedings to form
technical committee
Ex.D.13 Proceedings of meeting dtd.17.10.2017
Ex.D.14 Proceedings of the meeting dtd.23.10.2015
Ex.D.15 Proceedings of meeting of technical
committee dtd.03.11.2017
Ex.D.16 Proceedings of meeting of technical
committee dtd.15.11.2017
Ex.D.17 Proceedings of meeting of technical
51
Com.O.S.No.8367/2017
committee dtd.23.10.2017
Ex.D.18 Office copy of notice issued to D.V.Devaraj, dtd.23.10.2017 Ex.D.19 Postal acknowledgment Ex.D.20 Office copy of notice issued to Chandrashekar dtd.23.10.2017 Ex.D.21 Office copy of notice issued to B.M.Jagadish, dtd.23.10.2017 Ex.D.22 Office copy of 2nd notice issued to D.V.Devaraj dtd.03.11.2017 Ex.D.23 Postal acknowledgment Ex.D.24 Final notice issued to D.V.Devaraj dtd.15.11.2017 Ex.D.25 Postal acknowledgment Ex.D.26 Technical committee final report dtd.15.12.2017 Ex.D.27 Inter office note dtd.16.01.2019 Ex.D.28 Payment vouchers dtd.09.06.2017 (03 pages) Ex.D.29 Payment vouchers dtd.07.06.2017 (02 pages) Ex.D.30 Payment vouchers dtd.08.06.2019 (02 pages) Ex.D.31 Payment vouchers dtd.12.02.2019 (02 pages) Ex.D.32 Details of payment paid to the M/s.Sri.Banashankari Asphalt (SUMANGALA S BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.