Bangalore District Court
M/S. Karnataka Power Corporation vs Alstom T & D India Limited on 10 January, 2017
IN THE COURT OF THE 42nd ADDL. CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH.NO.43).
PRESENT: Sri.BAILUR SHANKAR RAMA,
B.Sc., M.A., LL.B.(Spl),
nd
42 ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE.
Dated this the 10th day of January 2017.
O.S.No.8767/2006
Plaintiff:- M/s. Karnataka Power Corporation
Limited, having its Office at No.82,
Race Course Road,
Bangalore-560 001,
By its General Manager (CA) and
Company Secretary.
(By - Sri.Ajay.J.Nandalike, Adv.)
v.
Defendant:- ALSTOM T & D India Limited,
14th Floor, Pragathi Devika Tower,
6th Nehru Palace, New Delhi,
(Formerly known as Cegelec India Ltd.)
(By - Crest Law Partners)
Date of institution of the suit : 30.08.2006
Nature of the suit : Recovery of Money
Date of commencement of : 23.04.2010
Recording of the evidence
2 O.S.No.8767/2006
Date on which the Judgment : 10.01.2017
was pronounced
Total Duration : Years Months Days
10 05 10
(BAILUR SHANKAR RAMA)
42nd ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
JUDGMENT
This is a suit filed by the plaintiff for recovery of amount of Rs.1,45,01,330/- with future interest at the rate of 12% p.a. from the date of the suit till realization.
2. The brief facts of the plaintiff's case are as under:-
The defendant is the Company and earlier it was known as M/s.Cegelec India Limited, having its Registered Office at New Delhi. Later on, Defendant - Company changed his name as M/s.Alstom System Ltd. Presently Defendant - Company is known as AREVA T & D Systems Limited. The plaintiff has planned to implement computerized integrated operation of reservoirs and generating units for Kali Valley Stage I & II for optimizing 3 O.S.No.8767/2006 generation of electric power from Kali Valley to achieve optimum water utilization. Kadra and Kodasalli Power Houses have to be installed and in this regard Kali Stage II was to be implemented with World Bank assistance. The World Bank Authorities desired that such optimization of generation for the entire Kali Project, which is also known as Kali Complex, as a whole could be considered including running of proposed stations. The World Bank suggested to avail the services of a consultant for the proposed Generation Management of Kali Project. M/s.EDF, France, was engaged as the Consultant and they have recommended control system for the proposed Generation Management, wherein First Level Control is individual control of generating units, Second Level Control is regarding Station Computer System (LCS) for Kadra and Kodasalli Power House and Third Level Control is Centralized Control Computer System for the control of all the power houses from a Central Control Station at Ambikanagar. The plaintiff has placed orders on M/s.Bharath Heavy Electricals Limited for the supply of Generating Units along with Unit Control Panels for Kadra and Kodasalli Power Houses at a 4 O.S.No.8767/2006 cost of Rs.1897.85 lakhs and Rs.1569.68 lakhs respectively under World Bank Scheme during 1989. The order placed on BHEL includes not only Pre-processing Station (PPS), but also various transducer equipments. The First Level Control System for Kadra and Kodasalli was included in this contract. This consists of auto sequencing panels through which unit can be started. The order for the control equipment required for the first level control in respect of Kadra and Kodasalli Power Houses have already been placed on BHEL, M/s.EDF France based on studies made by them suggested to procure and install suitable interfacing equipment for making first level equipment compatible with the second level equipment to be installed later. They have also recommended to procure microprocessor based line control panel to be compatible to second level control system. Based on the said recommendations, order was placed on BHEL for supply of interfacing equipment and also microprocessor based line control panels at a negotiated price of Rs.285.32 lakhs, which were not part of earlier order placed on BHEL. The first level was commissioned by BHEL and the system is in satisfactory service. Thereafter, 5 O.S.No.8767/2006 the plaintiff has invited Tender Notification No.LOT 3H5A14/LCS/Jan94 dated 15.01.1994 for the supply and installation of Supervisory Control and Data Acquisition (SCADA) System and for supply, erection and commissioning of second level control system. Then, the defendant was known as M/s.CEGELEC, which was one among the bidders and made an offer under Reference No.E41210/423 dated 16.04.1994. The defendant being the successful bidder was awarded the contract. The plaintiff and the defendant have signed 2 separate Agreements on 02.08.1995. The contracts includes regarding supply station level computer system and associated equipments for Kadra and Kodasalli Power Houses for Rs.1,26,83,660/- and to install, assemble and commissioning of station level computers for Kadra and Kodasalli Power Houses for Rs.7,76,000/-. The scope of work under the contract covered the networking of computers linked to the first level control room through pre processing station for communication with the first level control equipments and the software required for SCADA operations. The system is to provide for data acquisition, 6 O.S.No.8767/2006 monitoring, history, trending and computation of energy and control of generating units including hydro processor software for optimum operation through computers. The scope of the work under said contract covered the centralized control of Kadra and Kodasalli Plants and computer based supervision system specified to address the needs of Plant Operator, Plant Engineer and management for real time monitoring of power plant and control etc. The system was specified to interface with PPS supplied by M/s.BHEL for acquiring real time data from primary sensors and down loading commands to the final control elements.
The said system was to provide for data acquisition, monitoring, history, trending and computation of energy and control of generating units including hydro processor software for optimum operation through computers and networking of computers linked to the first level control room through pre processing station for communication with the first level control equipments and the software required for computer based operations. The supply and erection of all the above equipment were made by December 1997. The interfacing equipment supplied by BHEL acquire signals 7 O.S.No.8767/2006 from dam, penstock, turbine auxiliaries, governor, station auxiliaries, drainage, dewatering systems, compressed air systems, generator and auxiliaries. The microprocessor based line control panels are provided for the control / instrumentation of 220 KV switchyard equipments such as 220 KV breakers, isolators etc. together with indicating instruments for Kadra and Kodasalli Power Houses. The control / interlock logics in the software form are already built up in the microprocessor based line control panels supplied by BHEL. These also serve as backup for the hardware logics. The transducers are powered by uninterrupted power supply system. The above equipments are commissioned and are in service. The defendant has failed to commission second level control system at Kadra and Kodasalli Power Houses as per specifications contained in the Agreements and has failed to comply with the conditions and specifications required in the contract. The defendant could not complete their part to integrate the system because of various problems in the software and hardware supplied by them. The major problems are delay in executing the given command from the second level 8 O.S.No.8767/2006 control room to get transmitted to the first level control command and thereby making it unsuitable for real time operation of the system and frequent failure of hardware. The handing of nodes for no reason and thereafter, rebooting the system takes more than 20 minutes. During this period, monitoring and operation of the plant was not possible. Further, system crash and when system crashes it takes minimum 8 hours to reboot. The reliability of the system not proved. Not configuring of various features like hydro processor, disturbance of logs as per data sheet, maintenance logs line parameters, printers, joint control, energy measurement, flow, mean flow etc. Non commissioning of emergency back up panel. These defects have not set right inspite of numerous trials and attempts over a protracted period. The system could not be commissioned satisfactorily. The lacunae have been intimated to the defendant by the plaintiff, but the defendant did not attend the pending lacunae / defects despite the plaintiff intimating the defendant on numerous occasions. On 12.11.1998, the plaintiff observed that the communication between PPS and LCS stops frequently. The 9 O.S.No.8767/2006 defendant stated that they will come to site for testing only after BHEL confirms that PPS to LCS communication is stable. However, the defendant did not come forward to solve the problem. On 27.03.2000, the plaintiff insisted that the system should operate as per original scheme. On 06.09.2000, the defendant though attended to work, could not completely set right the defects. Hence, on 27.03.2001, the plaintiff intimated the defendant to complete the work immediately within a week and also communicated that if no such positive work has been done, it would be construed as failure of contractual obligation. The defendant took action to set right the problem. On 14.12.2001, the defendant acknowledged the problem in the system and agreed that 2 systems were not working and they carried data server to Delhi for rectification. On 13.02.2002, some modifications were done to run the system and the plaintiff reiterated to resolve the problem and to make the second level control system functional. Thereafter, several attempts were made to set right the problem in the control system by the defendant, but all such efforts were turned futile. In this regard, several reminders were sent by the 10 O.S.No.8767/2006 plaintiff to the defendant. On 28.02.2003, the plaintiff debarred the defendant from participating in the fresh tenders and took steps to encash the bank guarantee of Rs.15,23,566/-. This action of the plaintiff made the defendant to be proactive and the defendant communicated on 28.03.2003 that they wished to have a detailed technical discussion during April 2003. On 01.10.2004, the plaintiff issued a letter to the defendant demanding payment of Rs.1,17,70,561/- within 15 days. On 12.10.2004 the defendant wrote a letter reviewing the issues raised earlier, but they have not responded positively. Thereafter, the plaintiff constantly contacted the defendant to resolve these outstanding issues. But the defendant failed to resolve the issues to the satisfaction of the plaintiff. The plaintiff made several correspondences, but there was no satisfactory answer by the defendant. Although the defendant has been given ample scope and time for rectification, the defendant has failed to set right the problems. Hence, it is not possible to use the equipment supplied by the defendant at a total cost of Rs.134.50 lakhs. The bank guarantees furnished by the defendant for Rs.15.32 lakhs have been 11 O.S.No.8767/2006 encashed. The plaintiff issued legal notice on 21.09.2005 for refund of balance of amount of Rs.117.70 lakhs along with interest at 18% p.a. The notice is served on the defendant. Hence, the total amount paid by the plaintiff was Rs.1,32,94,127/- out of which a sum of Rs.15,23,566/- has been realized by the plaintiff from the encashment of bank guarantees. The plaintiff is restricting the interest claim at 12% only though interest is claimed is at 18%. Therefore, the defendant is liable to pay balance amount of Rs.1,17,70,561/- with interest of Rs.27,30,769.70. The contract was terminated by the plaintiff on 01.10.2004 when first demand for money was made and on 01.10.2004 when the defendant became liable to refund the money and subsequently on 21.09.2005, when legal notice was issued. Hence, in all the plaintiff has filed the suit to direct the defendant to pay Rs.1,45,01,330/- with future interest at the rate of 12% p.a.
3. After registering the suit, summons was issued to the defendant. The defendant has appeared through the counsel and filed the written statement. The defendant has denied the allegations made in the plaint. The suit of the 12 O.S.No.8767/2006 plaintiff is not having any merit. The defendant is a Company presently engaged in infrastructure development project in the field of Electricity Transmission and Distribution. The defendant has entered into 2 contracts with the plaintiff. The first one is for supply of station level computer system and associated equipments for Kadra and Kodasalli Power Houses at a contract value of Rs.1,26,83,660/-. The second one is to install, assemble and commission station level computers for Kadra and Kodasalli Power Houses at a contract value of Rs.7,76,000/- . The defendant has supplied both software and hardware as required under the contract, after inspection by KPCL way back in the year 1996. The system supplied was based on a Venix Operation System (Version 1.1.3) with Foxpro as the data base. The equipment and software were supplied to the plaintiff in the year 1996. The erection of the hardware at Kadra was completed in the middle of 1997. However, during commissioning the PPS supplied by BHEL was found to be defective as it did not comply with the design specification for communication as agreed between the parties. BHEL has rectified the system only in the year 13 O.S.No.8767/2006 2001 and that too in piece meal manner. When the equipment was sought to be operated, some of these equipment which were at the plaintiff's site began to malfunction, simply due to its age and handling at the site by the representatives of the plaintiff. Significantly, by then the bulk of the hardware supplied by the defendant has become outdated and not being supported by the manufacturers of such equipment. The development of technology unfortunately would not wait for delays, as were caused by the plaintiff. As such, both hardware and operating system software had dramatically changed by the time the plaintiff got the PPS ready for commissioning the system. The Venix Operating System, on which the software developed for the defendant was based, has become outdated by then. The hardware used was no longer available and was not being serviced by the hardware manufacturers. As a result, the upgradation of hardware was not compatible with the operating system software. The defendant then with great difficulty replaced several pieces of hardware such as hard disks, network cards, SCSI controllers etc. in January 2002. This made the 14 O.S.No.8767/2006 hardware operational. After which the Site Acceptance Test (SAT) was conducted in the presence of the representative of the plaintiff in February 2002. On 14.02.2002, the representatives of the plaintiff and the defendant have signed the complete Site Acceptance Test. In respect of Kodasalli, the systems were supplied in the year 1996. During installation the PPS supplied by BHEL was found to be defective. BHEL finally rectified the PPS system only in May 2002, after the lapse of over 7 years after the equipment was supplied, then Site Acceptance Test was done in the presence of the representatives of the plaintiff and the defendant on 18.05.2002. After that, there have been no reports of hardware failure. However, the plaintiff wanted several additional displays, which were provided to the plaintiff although they were wholly outside the scope of work entrusted to the defendant. Thereafter, the defendant requested the plaintiff to depute such of the employee of the plaintiff, who were trained by the defendant for the operation and management of the system. AREVA T & D India Limited is referred to as the defendant. The defendant was previously and prior to institution of the suit 15 O.S.No.8767/2006 named M/s.Cegelec India Limited, M/s.Alstom Systems Ltd. and M/s.Alstom Transmission & Distribution Systems Limited. It is a Company incorporated under the provisions of the Companies Act, 1956. AREVA T & D Systems India Limited has been merged with AREVA T & D India Limited from 18.09.2007, consequent upon passing of the Order by the 3 Hon'ble High Courts of Calcutta, Delhi and Madras, sanctioning the amalgamation. The Hon'ble High Courts orders also include dissolution of the transferor company without winding up. While the plaintiff notes the change of name in the plaint, they have chosen to file this suit in a non-existent company. The proper verification would have disclosed the change in name. As on the date of the suit, there is no entity by the name of M/s.Alstom Transmission & Distribution Systems Limited and no decree can be passed against non existent person. Hence, suit is to be dismissed. The plaintiff belatedly decided upon computerization of the operation of the Kadra and Kodasalli Power Generating Units. The assertion that the plaintiff has placed orders on M/s Bharath Heavy Electrical Limited (BHEL) for supply of Generating Units along with unit 16 O.S.No.8767/2006 control panels for Kadra and Kodasalli Power Houses, at a total cost of Rs.1897.85 lakhs and Rs.1569.68 lakhs under World Bank Scheme during 1989, is not within the knowledge of the defendant. The defendant is unaware of the details of the orders placed on BHEL. It is admitted that the plaintiff has invited tender under Tender Notification for supply and installation of Supervisory Control and Data Acquisition System and for supply, erection and commissioning of second level control system. The defendant i.e., M/s.Cegelec India Limited was one among the bidders. The defendant also admitted that the defendant was a successful bidder. It is also admitted that the defendant signed 2 separate Agreements on 02.08.1995. It is also admitted that the supply and erection of all the equipment were made by the defendant by June 1997. It is not admitted that there were any trials before BHEL commissioned the PPS Systems. The PPS was commissioned during 1998 at Kadra and April 2001 in Kodasalli, is denied. The defendant denied that it has failed to commission second level control system at Kadra and Kodasalli Power Houses, as per the specifications contained 17 O.S.No.8767/2006 in the Agreements. It is also denied that the defendant failed to comply with the conditions and specifications required in the contract. The defendant denied that it could not complete their part to integrate the system because of various problems in the software and hardware supplied by them. The supply and erection of the system was completed way back in the year 1996 and 1997. The commissioning could not be effected until BHEL supplied the PPS. However, in 1998, when the parties sought to commission the system, it was found that the PPS was malfunctioning. The PPS was finally made operational only in September 2000 at Kadra and May 2002 at Kodasalli by BHEL. During this time, the commissioning of the system could not be effected. Any commissioning should be effected within a reasonable period from the date of supply and installation. The computer systems are bound to suffer irreparable damage by lapse of time and also by disuse and misuse of the system at the site. It is beyond the purview of the contract. Regarding the operating software on which the program was based and in the interregnum become outdated. The defendant has replaced several pieces of 18 O.S.No.8767/2006 equipment for the purpose of making the system functional at their expenses. There is no lacuna / defect on the part of the defendant. Several correspondences addressed by the defendant in this regard. Hence, the assertion that the defendant did not attend to any pending lacunae / defects is false. The system was commissioned in February 2002 and May 2002 at Kadra and Kodasalli. The assertion of the plaintiff that it has observed the communication between PPS and LCS stops frequently is false. This was observed jointly by the representatives of the plaintiff, BHEL and the defendant. The defendant could not carry on commissioning without the plaintiff first commissioning the PPS. All the systems supplied by the defendant were fully functional. Thereafter, system was commissioned. The assertion that the defendant failed to set right the system is false. The invocation of the bank guarantee was wholly untenable and malicious act. There is no ground for invocation of the bank guarantee and the plaintiff is liable to refund the said amount illegally recovered by the plaintiff. The plaintiff constantly contacted the defendant to resolve out the several issues is false. The plaintiff has only sought 19 O.S.No.8767/2006 to prevent resolution of the dispute, possibly with a view to burden the defendant with the cost of the completely upgrading the system. The so called reasonableness in their demand that the defendant should pay the plaintiff the cost of the equipment and software supplied by the defendant to the plaintiff. It is false that the plaintiff was not able to use the equipment supplied by the defendant at a total cost of Rs.134.50 lakhs. It is also denied that the defendant is liable to refund a sum of Rs.117.70 lakhs with 12% interest. The defendant is not liable to pay the suit claim to the plaintiff. It is denied that the contract was terminated by the plaintiff on 01.10.2004. There is no question of terminating a contract, which was performed way back in 1996. The suit is hopelessly barred by limitation. Hence, prayed that suit be dismissed with exemplary costs.
4. The plaintiff has filed rejoinder. It is stated that the inspection and approval has only before the commissioning at defendant factory. The defendant has utterly failed to carry out the commissioning as per the terms of the contract. It is denied that the equipments 20 O.S.No.8767/2006 supplied by the defendant malfunctioned due to the delay by the plaintiff in handling the equipment and also due to aging of the equipments. The defendant was well aware of the fact that the second level control system supplied by them has to be interfaced with PPS of M/s./BHEL and the interface requirement and PPS was also inspected. The hardware supplied by the defendant was replaced. It is having defective nature during the guarantee period. The defendant was under an obligation to replace the same. The replacement of the equipments by the defendant clearly shows that the equipment supplied by the defendant was not reliable. It is false that the replacement was due to the malfunctioning of the equipment is due to age. The defendant has also attributed the delay in commissioning to malfunctioning of PPS is absolutely false. The delay in commissioning was mainly due to the missing packets in communication as found during joint commissioning. Further, the delay was also due to failure of UPS required for the system that was supplied by the defendant. Therefore, the system could not function without the UPS and the functioning of PPS is not connected to UPS as 21 O.S.No.8767/2006 contended by the defendant. Hence, the delay was not attributable to malfunctioning to PPS. The defendant has failed to perform its part of contract as per specifications laid down under 3.37.00 of the Contract Agreement. In fact, the plaintiff has raised several complaints in relation to the commissioning of the system during February 2002. The plaintiff has never signed and issued completion certificates. The Site Acceptance Test for 3 months could not be completed. Therefore, the statement that completion certificates are signed when Site Acceptance Test could not be started is unacceptable. Hence, on these grounds, the plaintiff has prayed to decree the suit.
5. On the basis of pleadings stated hereinabove, the following issues have arisen for consideration are as under:-
ISSUES
1. Whether the plaintiff proves that the defendant had failed to commission second level control system at Kadra and Kodasalli Power House as per specifications contained in the Agreement and has failed to comply with the conditions and specifications required in the contract?22 O.S.No.8767/2006
2. Whether the plaintiff proves that the defendant could not complete their part to integrate the systems because of various problems in the software and hardware supplied by them and the system could not commissioned satisfactorily inspite of numerous trials and attempts over a protracted period?
3. Whether the plaintiff proves that the contract was terminated on 01.10.2004 and the defendant is liable to repay an amount of Rs.1,17,70,561/-?
4. Whether the plaintiff is entitled for interest at the rate of 12% p.a. with annual rest from 01.10.2004 to 31.08.2006?
5. Whether the defendant proves that M/s.Cegelec India Ltd., M/s.Alstom Systems Ltd. and M/s.Alstom Transmission and Distribution Systems Ltd., amalgamated with AREVA T & d India Ltd. with effect from 18.09.2000 and the suit instituted in the name of the defendant is not maintainable as contended in para.13 of written statement?
6. Whether the defendant proves that due to the negligence and inordinate delay caused by the plaintiff in installation, the equipments and software become defective? 23 O.S.No.8767/2006
7. Whether the defendant proves that the computer system suffered irreparable damage by lapse of time, by disuse and misuse of the system at that site by the plaintiff and it is not liable for such loss, occasioned due to non-commissioning of the system?
8. Whether the suit claim claimed by the plaintiff is hopelessly barred by time?
9. Whether the plaintiff is entitled for recovery of the suit amount from the defendant as prayed for?
10. What order or decree?
6. To prove the case of the plaintiff, the plaintiff examined one of its Officers as PW-1 and marked Ex.P1 to P30. On the contrary, the defendant examined one witness as DW-1, who is the Regional Managing Director of the Defendant - Company and marked Ex.D1 to D9.
7. I have heard the arguments.
8. My findings on the above said issues are as follows:-
Issue No.1:- In the negative.
Issue No.2:- In the negative.
Issue No.3:- In the negative.
24 O.S.No.8767/2006
Issue No.4:- In the negative.
Issue No.5:- In the affirmative.
Issue No.6:- In the affirmative.
Issue No.7:- In the affirmative.
Issue No.8:- In the affirmative.
Issue No.9:- In the negative.
Issue No.10:- As per final order.
for the following:-
REASONS
9. Issue No.1, 2, 6 & 7:-
For the sake of convenience all these issues are taken up together for discussion to avoid repetition of facts and evidence.
10. The suit filed by the plaintiff against the defendant for recovery of Rs.1,45,01,330/- along with interest at the rate of 12% p.a. with annual rests based on the contract. The Defendant-Company was engaged by the plaintiff under the Agreements - Ex.P2 and Ex.P3 for the purpose of commissioning II Level Control Systems for its Kadra and Kodasalli Power Station. As per the terms agreed under Ex.P2 and Ex.P3 as specified under the contract the defendant was required to commission the 25 O.S.No.8767/2006 equipment for the plaintiff for the purpose of make it available for function. The case of the plaintiff that the equipment supplied and installed by the defendant was not functioning properly and the defendant failed to cure the defects in the equipment and not evolved any solutions despite several requests made in this regard by the plaintiff repeatedly. That is the reason, as the defendant failed to resolve the issues to the satisfaction of the plaintiff as agreed by the defendant under contract and failed to fulfill the contractual obligation the plaintiff terminated the contract and bank guarantee furnished by the defendant for Rs.15.32 lakhs have been encashed. The plaintiff also got issued legal notice dated 21.09.2005 to the defendant to refund the balance amount of Rs.117.70 lakhs along with interest at 18% p.a. The defendant had sent reply taking untenable plea.
11. The defence set out by the defendant wherein it is contended that there is no Company called M/s.Alstom System Ltd. Therefore, against wrong Company suit is filed is a nullity and it is also contended that they supplied the equipment as per the terms of the contract within the time 26 O.S.No.8767/2006 period. It is the plaintiff having terribly delayed the commissioning of the system for over 5 years even after their supply and erection in 1996 and 1997 respectively. The commissioning could not be effected until BHEL supplied the PPS and it was found that PPS was malfunctioning and finally it was made operational only in September 2000 at Kadra and May 2002 at Kodasalli by BHEL. The equipment particularly computer systems are bound to suffer irreparable damage by lapse of time and also by disuse and misuse of the systems at the site. Therefore, the contention of the defendant is that its equipments fulfilled the Competition Test satisfactorily as evidenced by Ex.D1 and Ex.D2. As such, the allegation made by the plaintiff equipment supplied was faulty is false. It is their case that there was problem in BHEL's equipment supplied, that too after sufficient delay and it was not co- related with the specification supplied to the Defendant Company, as such it has resulted in malfunction, for that defendant is not responsible. Therefore, as there is delay in making claim as alleged by the plaintiff, as such it is hopelessly barred by limitation. Therefore, heavy burden is 27 O.S.No.8767/2006 on the plaintiff - M/s.Karnataka Power Corporation Ltd. to prove that the defendant had failed to commission the II Level Control System at Kadra and Kodasalli Power Houses as per the specifications contained in the Agreements and failed to comply with conditions and specifications required in the contract and also they are expected to prove that the defendant have not complete their part to integrate the system because of various problems in the software and hardware supplied by them and the system could not commissioned satisfactory inspite of numerous trials and attempts over protracted periods.
12. Basically, the suit filed was based on 2 separate contracts awarded by the plaintiff to the defendant:-
(1) Supply of II Level Station Computer System and association equipments for Kadra and Kodasalli Power Houses and (2) Installation Assembly and Commissioning of Station Level Computers for Kadra and Kodasalli Power Houses as per Ex.P3.
13. In the cross-examination of PW-1 in page No.21 he has categorically deposed that Ex.P2 is the contract for 28 O.S.No.8767/2006 supply of materials and Ex.P3 is the Agreement for erection and commissioning. He has also agreed that as per Ex.P2 computer systems with software were to be supplied to the Power Corporation. He has deposed that in all 4 computers for one Power House and another 4 computers for another Power House were to be supplied. The computer systems to be supplied under the contract were containing:
1(a) system hardware consisting of Data Server, Operators Work Station, Engineer Station, Printers, Hard Copier, VDUs as per specifications (b) Hardware spare parts.
(2) Other equipments to include the
following: (a) UPS (b) Furnitures (b)
Partitioning (d) Grounding Works (e)
Emergency Backup Panel.
(3) Systems software consisting of Basic
Software, Database, variable processing,
process software, CCS Link Management
(future requirement), PPS Link Management, Data Logging, man machine dialog, operator dialog, maintenance dialog and data storage etc., as per specification.
(4) Initial consumables namely:
(a)Printer Paper, (b) Catridge Tapes,
(c) Printer Ribbons (d) Fuses / Lamps.
29 O.S.No.8767/2006
As per Contract I the value was for Rs.1,26,83,660/- and again contract value under II Contract was Rs.7,76,000/-.
It is the definite case of the defendant that, they supplied all the above mentioned equipments to the satisfaction of the plaintiff as per the terms agreed under the contract in the year 1996 itself. In the cross-examination at page No.22 PW-1 has admitted that the items listed here above were supplied by the defendant to the Power Corporation. Ex.P4 - copy of the fax dated 20.12.1997 sent by Defendant-Company to the plaintiff, evidencing the supply of materials and particularly Defendant - Company had undertaken to replace/rectify any equipments free of cost whenever found necessary during the commissioning of the equipments. They also agreed that repairs if any found in the equipments commissioned will be attended free of cost at the earliest. Therefore, as per the contract only they supplied the equipments, which is confirmed by the plaintiff. In the chief affidavit itself in para No.10 PW-1 admits with reference to Ex.P4 that the equipments were supplied and as per their letter they undertaken to attend to any defects in equipments during the time of commissioning. It is not 30 O.S.No.8767/2006 in dispute that in Ex.P2 and Ex.P3 the specification of the equipments to be supplied are clearly detailed out and that is spoken by DW-1 in his evidence and even PW-1 in the cross-examination at page No.27 has categorically admitted that Ex.P2 is pertaining to the contract for supply of equipments for the amount of Rs.1,26,83,660/-. There is a categorical admission that all the equipments that were required to be supplied under Ex.P2 have been supplied and erected. He has also admitted that after the equipment was ready in the premises of the defendant, they requested Plaintiff - Corporation to inspect those equipments in their premises and accordingly, Officers of the plaintiff went and tested them. He has further admitted that the Test Reports conducted by their Officers are available in their office. He has further admitted that the inputs are sufficient for manufacture of equipments and Officers of the plaintiff was having the specification of the inputs when they went for an inspection, they tested the equipments for compliance with technical specifications and their Officers reported that the equipments are technically complied. He further admits that the equipments were supplied and erected only after 31 O.S.No.8767/2006 the Report. For the reasons best known to the plaintiff, the said Report has not been produced.
14. In the cross-examination at page No.28 PW-1 has deposed that under Contract - Ex.P3 for erection it was given at the cost of Rs.7,76,000/-. He admits that equipments were supplied in 1996 and they were erected in the year 1996-1997. He has further stated admitting that II Level Control Systems supplied by the defendant could be commissioned only after the I Level Control System and the interfacing equipments supplied by BHEL were commissioned. Because, a specific defence was taken by the defendant that delay in supply by BHEL as per the specification and due to the negligence and inordinate delay caused by the plaintiff in installation, the equipment and software become defective. It is specifically contended by the defendant that the computer system suffered irreparable damage by lapse of time, by disuse and misuse of the system at the site by the plaintiff. Therefore, the defendant is not responsible for anything happened or inconvenience caused, as such not liable to loss occasioned due to non-commissioning of the system, that is the reason 32 O.S.No.8767/2006 Issue Nos.6 and 7 are raised. Of course, burden to prove the same is on the defendant.
15. The learned counsel for the plaintiff vehemently argued that contract of supply of equipment would be fulfilled only if the equipment fulfilled the requirement for which it was purchased. Such a requirement was made clear in the contract and the defendant is having notice of the same. Therefore, as equipments to be commissioned after installation it require to be utilized by the plaintiff for which it was installed. Therefore, he stressed on the point that the equipments supplied by the defendant did not fulfill the purpose and several correspondences were made in this regard under Ex.P5, Ex.P8, Ex.P11, Ex.P14, Ex.P16, Ex.P18, Ex.P23 and Ex.P26. Therefore, the defence taken by the defendant that there was a fault in the BHEL equipments supplied at belated stage is an after thought. He pointed out that at the time of discussion with BHEL, the defendant was present and issue has not been raised as could be seen from the Minutes of the Meeting - Ex.P6, Ex.P9 and Ex.P10. Therefore, now such contention is raised just to defeat the claim of the plaintiff and it is an after thought. Even he 33 O.S.No.8767/2006 pointed out that no Expert's evidence is led by the defendant to show how equipments supplied by BHEL was faulty. Therefore, when correspondences are made with the defendant to enlighten them about the defect in the equipments supplied by them and it was not functioning properly. Without taking any pains to adhere to the terms of contract to fulfill the requirements, now defence is taken blaming the plaintiff and BHEL, that is not available for them. He stressed on the point that Ex.D1 and Ex.D2 produced by the defendant i.e., Site Acceptance Test Reports are fabricated documents. It bears the signature of one Mr.Shums Parvez Ahmed, whose designation in the Company has not been revealed. Only Superintending Engineer of the plaintiff was authorized to sign on the Acceptance Test is conducted, therefore Ex.D1 and Ex.D2 are not genuine documents, created for the purpose of this suit. Even after these Tests the defendant has written letters stating that equipment is not working properly that itself shows that equipment was never functioning properly. As such, Ex.D4 - Letter was sent before Acceptance Test, but the contents are contradictory to the stand taken by the 34 O.S.No.8767/2006 defendant in the Minutes of Meeting, wherein the defendant has not remotely whispered anything against BHEL. He drew the attention of the court to Ex.D5 that the Communication System was not working. As such, he urged that the plaintiff has established Issue No.2 that the connection between I Level System and II Level System was not working. No Expert's evidence is led by the defendant. The defendant has failed to prove Issue Nos.6 and 7 and urged that for the loss sustained by the plaintiff, defendant is liable to pay the amount received under Contract - Ex.P2 and Ex.P3 along with interest as claimed in the suit and prayed that suit be decreed.
16. M/s.EDF France, who is Approved Architecture as could be seen from Ex.P2 and Ex.P3. PW-1 has deposed that starting and stopping of Generator and associated equipments from the Control Panel located in the Power House is called I Level Control. He admits that the present defendant was not a party to the contract between plaintiff and BHEL. The services of M/s.EDF France was engaged by the plaintiff for rendering system architecture recommended the following 3 level control systems i.e., 35 O.S.No.8767/2006 I level Control System: Individual Control of Generating Units, II Level Control System: Station Computer System (LCS) for both the Power Houses and III Level Control System: Centralized Control Computer System for the control of all the Power Houses from a Central Control Station at Ambika Nagar what is deposed by PW-1 in para No.4 of chief affidavit.
17. PW-1 in the cross-examination has stated that M/s.EDF France was their Consultant for II Level Control System and there was no Consultant for them in respect of placing the orders with BHEL for Generating Units. This witness has showed his ignorance stating that he doesn't remember the date of placing the order with BHEL for supply of Generated Panel Unit and Unit Control Panels for Kadra and Kodasalli Project. The order was placed approximately in 1989. He has stated in the cross- examination that they had taken the consultation of M/s.EDF France for explaining them and giving guidance. Therefore, according to this witness specification of II Level Control System was prepared by M/s.EDF France and they 36 O.S.No.8767/2006 conducted survey of Kadra and Kodasalli Power Projects before preparation of the specification. The Report submitted was there in their office, but not produced. As per the Tender Notification - Ex.D1, prospective bidders submitted their tenders including the defendant and before inviting the tender, the technical specification was prepared in respect of the Station Level Control. PW-1 has deposed that the contract document for giving contract to BHEL is with them in their Office. Since the plaintiff is a Corporation, certainly all the transactions with BHEL were with them. Because when defendant alleged against BHEL and also attributed negligence on the part of the plaintiff - Corporation, they are expected to clarify by producing the documents. It has come in the evidence of PW-1 that pre- processing stations means the interfacing equipment between I Level and II Level Control Systems. BHEL was to supply PPS System to the plaintiff. Plaintiff - Corporation has given technical specification relating to present contract to BHEL as per the advice given by M/s.EDF France. But no report given by M/s.EDF France is forthcoming and according to this witness during 1994 itself technical 37 O.S.No.8767/2006 specification was prepared. He has stated that he doesn't know whether M/s.EDF France had technical specialization to prepare technical specification. However, PW-1 admits in page No.26 of cross-examination that I Level Control System was commissioned around in the year 1997 to the extent of one Generator in Kadra Station. He has further stated that II Unit of Kadra was commissioned in January 1999. III Unit of Kadra was commissioned in May 1999. I unit of Kodasalli commissioned in June 1998, II Unit of Kodasalli was commissioned in April 1999 and III Unit of Kodasalli was commissioned in August 1999. On the above dates Generators were started and put to operation for production of powers. In the cross-examination he has further stated that before commissioning of each unit, all the inputs available for the I Level Control System will not be available and they are available only in stages. All the inputs are available from the date of commissioning. The interfacing equipments supplied by BHEL also could be tested in its totality only after commissioning of the Generator. He has deposed that PPS was commissioned between 1996 and 1997. Therefore, the word 38 O.S.No.8767/2006 commissioning found in Ex.P3 - Contract according to this witness means, operation of the generating equipment in real time. Therefore, it is the responsibility of the purchaser i.e., plaintiff to ensure that technical facility were sufficient for the purpose of establishment of communication between I Level Control System and II Level Control System.
18. PW-1 has stated about output parameters in Clause 3.03.01 and Clause 3 of the Agreement and Clause 3.04 and Clause 3.03.02. He admits that apart from these output parameters mentioned in Clause 3.03.02 there are no other technical specification mentioned in Ex.P2 and Ex.P3 relating the interfacing equipment which is supplied by BHEL. Equipment were supplied by the defendant was IEEE 802.3 specification. Supply order for supply of PPS System for both the Power Houses was placed with BHEL in September 1992 by way of extended order to Kodasalli Generating Unit and he has deposed that Ex.P2 and Ex.P3 are complete Agreements between the plaintiff and the defendant. Therefore, it is admitted fact to make any change in respect of Ex.P2 and Ex.P3 - Contracts the written order of Chief Engineer is necessary. PW-1 admits 39 O.S.No.8767/2006 in the cross-examination at page No.30 that the Chief Engineer has not issued any order for changing the terms and conditions of Ex.P2 and Ex.P3. Therefore, the defence taken by the defendant is based on the terms of the contract in Ex.P2 and Ex.P3. Therefore, Clause 1.01.19 of Ex.P2 which specifies what is commissioning and Clause 3.37.03 lays down the provision for Site Acceptance Test (SAT). Therefore, the equipments supplied by the defendant, what is admitted by PW-1 in his evidence as per the specification in the presence of representatives of the plaintiff at Kadra in February 2002 and Kodasalli in May 2002 and it was recorded that the systems supplied by the defendant were working. Though Ex.D1 and Ex.D2 are attacked heavily by the learned counsel for the plaintiff, but evidence goes to show that the materials supplied were tested in the presence of the plaintiff's Officers and they were working, can very well be gathered.
19. PW-1 has deposed in the cross-examination that he doesn't have full information regarding the payment of amount to BHEL as per the contract. That means, this witness doesn't have full knowledge about the contract with 40 O.S.No.8767/2006 BHEL, but he wants to say that contract with the defendant is Rs.1.34 crores. On going through the evidence of PW-1, it is noticed that cross-examination was made at different stages and this witness when he appeared for adjourned date wanted to clarify the earlier admissions given. In page 31 of the cross-examination a categorical admission by reiteration he has stated that he is admitting that equipments which were supplied by the defendant commissioned, but made an improvement that the functioning was with some lacunae. He could have deposed the same when earlier questions were put to him. Once admitted that equipments were supplied, were tested and they started functioning, but at the later stage changing the version that they were functioning with some lacunae, is an after thought so stated just to improve his earlier versions. Therefore, half hearted attempt is made by PW-1. At one breath admitting that all the equipments were supplied well in time, tested as per the specification and started functioning. Therefore, later version cannot be accepted at all.
41 O.S.No.8767/2006
20. According to this witness, Clause 1.01.19 in Ex.P2 it is only mentioned about the definition of commissioning, but total commissioning is mentioned in Clause 3.37.03. The said clause refers to be SAT and other operational tests need be conducted. Therefore, if it is read with Clause 1.01.19 the meaning of word commissioning can be appreciated. Certainly the evidence goes to show that on supply of materials in the presence of the Officers of the plaintiff and BHEL tests were conducted and installations were made, Generator start functioning as stated by PW-1 at different dates at Kadra and Kodasalli Units, goes to show that supply was made as per terms and specifications and units were start functioning, as rightly argued by the learned counsel for the defendant. Therefore, that is the reason there was no occasion for them to raise objections against BHEL at the relevant point of time. In page 32 of cross-examination of PW-1 he admits that the defendant supplied the equipments in the year 1996 and they were installed in June 1997 in Kadra Project and in August 1997 in Kodasalli Project. Though he has stated that it was partly installed, but the admissions given by PW-1 about the 42 O.S.No.8767/2006 supply of equipments as per the contract and specification and they were found working when erected, thus stands proved.
21. PW-1 has deposed that according to him the commissioning of equipments supplied by the defendant has to be made in a coordinated manner over the period. In the terms and conditions of the contract it is not mentioned that the commissioning work will take 6-7 years. Because he admits the gestation period for commissioning the Hydro Electric Station is between 6-7 years. However, Clause 4 of Section 3 in Ex.P3, he admits that as per this condition commissioning has to be done within a period of 2 months, but the period of 2 months will be counted after site is available for erection. He admits that commissioning would have been completed by October 1997 in respect of I Unit at Kadra. Therefore, according to the allegations of the plaintiff, the equipments supplied are faulty, it was not co- related with the equipments supplied by BHEL. If actually delay was occurred with regard to the commissioning is concerned, it should have been informed to the supplier i.e., defendant herein in the earliest point of time. In page 33 of 43 O.S.No.8767/2006 cross-examination of PW-1, he has stated that they did not inform the supplier that commissioning will be delayed by more than 5 years after the equipments were supplied and erected.
22. He has stated that as on the date of Ex.D4, they did not expect that commissioning could be delayed more than 5 years. He has admitted the Ex.D4 - Letter dated 2nd November 2000, was written in response to the letter from the plaintiff, request for extension of Bank Guarantee. If we read the contents of the letter, BHEL rectified their problem only in the end of July 2000 and again with the help and advice of Engineers of the defendant available at site since June. As there is problem in the systems supplied by BHEL, rendering the systems supplied by the defendant unusable at this moment. It is informed that they had completed erection work of Kodasalli Power House, further work can only be taken only when BHEL system is commissioned. That means, problem was detected in the systems supplied by BHEL and request was made that they could be able to rectify it only after BHEL system is commissioned, because for successful operation and commissioning the work the 44 O.S.No.8767/2006 equipments supplied by BHEL should harmoniously co-relate with the equipments supplied by the defendant as per specification.
23. Ex.P5 is a letter addressed to M/s.Alstom System Ltd. dated 03.05.2000 by the plaintiff with reference to the earlier letter written by the defendant dated 14.04.2000 that their contention that they completed the II Level Control System cannot be accepted as the system is not working in an integrated manner with continuous control of unit satisfactorily. May be other features like Hydro process optimization, computational function, control by mimic and diagram and various logs are yet to be implemented and demonstrated. The problem of communication in PPS system supplied by BHEL as intimated by the defendant Company has been taken up by BHEL at the highest level for sorting out the problem. Since II Level Control System entrusted to CEGLEC requires coordinated commissioning and implementation with site requirements. It is incorrect to say at this stage the system is commissioned and handed over. May be, by this letter what it reveals that problem was noticed, but equally it is reported by the defendant 45 O.S.No.8767/2006 about the problems in PPS system supplied by BHEL. That was the cause for problem the defendant has faced in commissioning and measures were taken by the plaintiff at the highest level, goes to show that the contention of the defendant that 4-5 years delay of BHEL to supply the PPS and equipments, other problems developed regarding failure of hardware. But one point is clear that all the materials and equipments as per the terms of the contract were supplied in the year 1996 itself by the defendant and they were with the plaintiff only. Therefore, PW-1 in the cross-examination admits that under Ex.P5 the defendant suspected the problem with BHEL equipments and the same was taken up with BHEL for sorting out the problem. He has further admitted that as per Ex.P6 BHEL suspected the problem in scheme adopted by the defendant as in para 2 of the said document it is stated that the scheme adopted for interfacing the PPS with II Level Controls supplied by M/s.Alstom System Ltd. BHEL expressed doubts over present method adopted for communication and suggested that alternatives should be explored. Therefore, the defendant accuses the BHEL and in turn, BHEL attributes 46 O.S.No.8767/2006 accusation against the defendant raising doubt over the present method adopted for communication.
24. Therefore, the real question involved is that, what is argued by the learned counsel for the defendant that because of the delay and neglect and BHEL have supplied equipments later that was not suited to the specifications with which earlier Defendant - Company had supplied the equipments because change of technology has got grain of truth. Certainly it affects the actual commissioning, but for which the defendant alone cannot be suspected. Because BHEL was suppose to supply PPS, interfacing equipment and microprocessor, based line control panel.
25. DW-1 in his evidence has deposed about the defence taken by them in their written statement. PW-1 in the cross-examination has stated admitting that after installation of equipment in the year 1997 the KPCL Officers were trained in operating. He further admits that after installation of the equipments, Officers of KPCL are using the equipments for conducting the tests from time to time. 47 O.S.No.8767/2006 Therefore, if further problems developed because of the PPS and other equipments supplied by BHEL are not responding to the equipments supplied by the defendant. Those problems occurred because of change of technology, that was not the matter involved in the contract. Therefore, when in 1996 they supplied equipments and installations were made and Officers of the KPCL were trained and it started functioning, certainly there is justification for the defendant to contend that the allegations attributed against them is far from truth. Though they made best efforts to rectify, but because of non-co-operation from BHEL, desire result could not be achieved. PW-1 admits that he doesn't have personal knowledge how the KPCL Officers were using the equipment supplied by the defendant from 1997 to 2000. In Ex.P6 BHEL have suggested two alternatives.
26. Ex.P7 to Ex.P10 are the correspondences made between the plaintiff and the defendant. Ex.P11 is the letter addressed by Chief Engineer, KPCL, Bangalore to the defendant, wherein it is reported that equipments were supplied by December 1996 itself, erection of hardware at Kadra was done in June 1997, even though several 48 O.S.No.8767/2006 attempts were made from then on to commission the system, the system has not been made fully operational till today. It is stated that in the earlier letter addressed reporting that system is commissioned and SAT may be carried out, for that the plaintiff informed that it is not in line with the contract and contractual conditions were extracted. But one thing is clear from the letter that the KPCL had to make persistent follow up efforts to arrange joint testing by M/s.Alstom and BHEL at site. On few occasions work was held up due to problem in PPS of BHEL. However, there are instances when the commissioning tests were held up due to problems like failure of hardware of M/s.Alstom. Even till today some hardware of Kodasalli which were taken for replacing the defective once at Kadra are not repaired. Due to all these problems the system did not get operational and could not be put to use. No doubt, several correspondences are made with the defendant are produced by the plaintiff.
27. But if we read the matters referred in these correspondences, one thing is clear that they supplied the equipments and it was installed initially it starts functioning, 49 O.S.No.8767/2006 but further developments what are happened the problems found which according to the plaintiff that system installation become inoperational. That is the reason they have taken measures against the defendant.
28. In the evidence of PW-1 he has stated that generally during execution of major works, many problems are bound to occur which are not expected and not anticipated. In this particular case KPCL was not aware that interfacing problem may occur. However, during tendering and subsequent clarifications the defendant was made well aware of the equipments to be supplied is to be coordinated with the available PPS system supplied by BHEL. Further, the defendant has even tested the PPS system supplied by BHEL at BHEL Factory before dispatch. In Ex.P5 there is a reference to that effect. PW-1 has deposed that the testing referred in Ex.P5 is generally mentioned taking into account the problem faced by the Corporation with reference to the equipments supplied by the defendant. However, in the cross-examination he admits that when the technicians of the defendant attended the spot, the technicians from BHEL were also present, but they were present initially. But this 50 O.S.No.8767/2006 witness had no personal knowledge about the said fact, can very well be gathered. As he has further deposed that after coming to this Department the technicians of BHEL have not attended the spot because their work was already completed. Therefore, he wanted to say that the responsibility of BHEL was ceased.
29. In Ex.P12 - Letter addressed by Sri.Shums Parvez Ahamed, Software Specialist to the Superintending Engineer, KPCL, Kadra, hardware problem was mentioned. But PW-1 has stated that he doesn't know the actual hardware problem. Ex.P13 - letter dated 13.02.2002, through which he informed to the KPCL that Kadra II Level Control System is in operation for the last 3 days and attention was drawn that during the recent visit of Engineer of the defendant they upgraded the system to take about the obsolescence of the hardware. Therefore, measures were taken by attending upgrading the system by the defendant Engineers can also be gathered. PW-1 has deposed that in Ex.P22 - fax it is mentioned that entire hardware has to be replaced as it had become outdated. However, he admits that it may be true that hardware 51 O.S.No.8767/2006 become obsolescence due to change in technology between 1996 to 2002. Though PW-1 has stated that the software used by the defendant for operating system was Vinix version and he doesn't know the program used by the defendant for software. Even he doesn't know which software was used by BHEL for preparing the PPS System. Therefore, one thing is clear that changes in technology due to lapse of time from 1996 to 2002 can be gathered. PW-1 admits that due to changes in technology, the manufacture of equipments will stop supporting some of the equipments, the plaintiff has not placed orders for supply of fresh equipments by the defendant. Under Ex.P22 the plaintiff requested the defendant to replace the equipments by new equipment free of cost. However, he has stated that he is not in a position to say whether the defendant had replaced any equipment after sending Ex.P22. A clear admission given by him that the delay of execution of commands referred in Ex.P22, is the delay occasioned in the execution of commands given from Level II Computer System to Level I Computer System. Further, he has admitted that the architecture and specification of PPS system has been 52 O.S.No.8767/2006 changed from what was tendered and what is available at the site. However, he has stated changes were made based on the request of the defendant. He has stated that during joint testing some problems were suspected in PPS by the defendant, accordingly same was changed. That means, witness is not having the correct knowledge about the facts happened at the relevant point of time.
30. It is the positive case of the defendant that the plaintiff has issued Test Certificate on 14.02.2002 for Kadra and on 18.05.2002 for Kodasalli in respect of defendant's work. He admits that once they start using the hardware the warranty period of the hardware starts and commission of PPS was done after erection of Generator and Control Panel. The time limit for erection of Generator and Control Panel was to be done within a period of 4-5 months. Only after commissioning of Control Panels any data will be secured. To the specific question put to the witness that what was the date on which PPS was commissioned. He has deposed that PPS was also commissioned during the commission of each unit. PW-1 deposed that Hydro processor is provided by BHEL. The printers were provided 53 O.S.No.8767/2006 by the defendant were in accordance with their specification. Further admits that the defendant supplied the software as per the specification of the Corporation.
31. DW-1 in his evidence has deposed that due to change in technology, the support to some of the equipment had already become impossible, having realized that the system has become outdated the plaintiff wanted the defendant to virtually replace the equipment and software supplied under the contract with new upgraded equipment and software in keeping with the technological advancement between 1997 to 2002. The plaintiff has not produced any materials to show that the equipments supplied, installed and commissioned is defective in any manner.
32. The evidence brought on record if carefully analysed and scrutinized, one thing is clear that as per the specification only under the terms of contract during 1996 itself all the equipments, materials were supplied by the defendant. They were with the plaintiff. Further, installation, erection and commission work was also done and generating system at Kodasalli and Kadra were started 54 O.S.No.8767/2006 and evidence goes to show that Officials of the plaintiff were also trained to operating the system. Therefore, as rightly stated by DW-1 that except accusing that installation has not become useful, nothing is brought on record to show that the equipments supplied are of sub-standards or unoperational.
33. Therefore, there is justification in the submission made by the learned counsel for the defendant that by the time the plaintiff's claimed the PPS to be ready for commissioning, the equipments supplied by the defendant were already 5 years old. The computer system that was supplied by the defendant was using Vinix Operating System with Foxpro as database and has become completely obsolete by 2001 due to advancement in technology. The hardware available in 2001 also did not support Vinix Operating System. The learned counsel for the defendant has tried his best to elicit maximum from the mouth of PW-1 in the cross-examination. Therefore, it is clear that the equipments supplied as per the terms and conditions of the contract were of the specifications given in December 1996 itself, is an admitted fact. Therefore, those 55 O.S.No.8767/2006 systems and technology available then was capable of being used as regular system and was put to use by the plaintiff for its day-to-day operations. Therefore, the said system was used for testing the working of PPS, the exercise the plaintiff and BHEL Officials undertook for over more than 4 years, as the learned counsel has argued that system was carelessly handling, as a result of which there were some issues were cropped up with the equipments, which greatly affected the commissioning of the equipments.
34. Therefore, as per Clause 2.15.01 in Ex.P2 which stipulates that the equipments required for Kadra Power House shall be delivered by May 1996 and equipments required for Kodasalli Power House shall be programmed for delivery by December 1996 subject to confirmation by KPCL. In 1996 itself the defendant had supplied and subsequently erected the equipments in plaintiff's premises has also been admitted and deposed by PW-1. The admissions given by PW-1 in the cross-examination have been culled out and discussed hereinabove makes it clear that as per the specification itself under the contract, equipments were supplied, installations were made and 56 O.S.No.8767/2006 erected in the premises of the plaintiff and in both Kadra and Kodasalli Project generating systems were functioning. What is noticed by the court that the plaintiff had entered to a contract with BHEL for supply, erection and commissioning of I Level Control System and subsequently, entered into contract with BHEL for supply of PPS Link. Therefore, what is found that PPS was malfunctioning and not available to establish the commission between I Level Control System to II Level Control System and the correspondences made reveal that it was reported to KPCL and also to BHEL and certain measures were taken from both the sides. Therefore, it is clear that almost 5 years have been taken by BHEL to make the PPS Link ready for commissioning, but even then failed to rectify the defects in PPS Link completely. As could be seen from Ex.D4, Ex.P5 and also Ex.P9 - Minutes of the Meeting conducted for deliberation of rectification of defects. The further correspondences are made also shows that the defects have not been rectified. Therefore, the say of PW-1 and also the clean chit given by KPCL to BHEL, that it is only the defendant has failed to rectify the problems erupted cannot 57 O.S.No.8767/2006 be appreciated at all. Because the harmonious link between the PPS supplied by BHEL and other equipments supplied by BHEL should work with the equipments supplied under specification by the defendant is due to change of technology. Even though certain measures were taken problem could not have been rectified, blame should not be attributed against the defendant, because the correspondences made reveal that they responded pretty well to make the system upgraded and operational to suit the need of KPCL. Though it is disputed by the plaintiff as regards the test conducted at Ex.D1 and Ex.D2 regarding final Acceptance Test in the year 2002, but according to the defendant the commissioning of the equipments has become successful.
35. Therefore, it is clear that delay occurred for so many reasons and negligence in handling the equipments as rightly argued by the learned counsel for the defendant. Because the defendant had commissioned the equipments, supply was admitted was well within time. There is no allegation made that the equipments supplied are of sub- standards. It is also noticed from the evidence and 58 O.S.No.8767/2006 admission given by PW-1 that several tests were made, reports submitted, though he has stated that those reports are with them in the Office, but not produced before the court. Therefore, withholding of material piece of evidence by the plaintiff, an adverse inference can be drawn against the plaintiff under Section 114(G) of Evidence Act. Therefore, the evidence brought on record and the documentary evidence produced is read with the terms of the contracts - Ex.P2 and P3, there was a delay occurred can very well be gathered and same cannot be attributable to the system supplied by the defendant. Because in the pleadings itself there is an admission that the equipments supplied by the defendant were satisfactory and in terms with the contract. Same is admitted by PW-1 in the cross- examination. Therefore, the facts intimated to the defendant regarding the problems found in hard disc and its failure and problem in the UPS system was in the year 2001 i.e., 4 years after its supply.
36. If we read Clause 27 in Ex.P3, which specifies the contractor shall guarantee the complete assembly and assembly work done by him under this Agreement for 59 O.S.No.8767/2006 proper functioning, free from defects for a period of 12 months from the date of commissioning. Therefore, maintenance period was of 1 year from the date of commissioning and it was erected and started functioning can be gathered by the evidence of PW-1 in the cross- examination. The defects and problems reported only in 2001. When it was commissioned in the year 1997 and 1998 itself, now the contention of the plaintiff that they are expected to replace the entire equipments supplied and they terminated the contract and liable to pay the amount what is claimed in the suit, cannot be appreciated at all. Therefore, it is needless to say the plaintiff has failed to prove Issue Nos.1 and 2. On the contrary, there are ample circumstances worth to accept the contentions of the defendant that due to negligence and inordinate delay caused by the plaintiff, installation of equipments and software become defective and computer system suffered irreparable damage by lapse of time, by disuse and misuse of the system at the site by the plaintiff. As such, the defendant is not liable for such loss occasioned due to non- commission of system to the plaintiff. Accordingly, I answer 60 O.S.No.8767/2006 Issue Nos.1 and 2 in the negative and Issue Nos.6 and 7 in the affirmative.
37. Issue No.3:-
The positive case of the plaintiff is that on 01.10.2004 contract was terminated and by issue of notice the plaintiff has demanded the money paid to the defendant as agreed under the contract. The plaintiff issued letter dated 28.02.2003 as per Ex.P23, wherein all the defects in the system was pointed out and in the previous correspondences made the defendant has failed to rectify it or replace it. Supply, erection and commission of II Level Control System was ended in failure and work has not been carried out to the satisfaction of the plaintiff and the defendant is incapable of carrying out such work. In the said letter it is informed to the defendant and in accordance with Clause 1.24.00 under Ex.P2 - Contract Agreement the plaintiff rejected the entire system supplied by them for both Kadra and Kodasalli Power Houses. Towards rejection of defective plants and demanded the entire costs that would be incurred for replacing the system, equipment etc., 61 O.S.No.8767/2006 is recoverable from the defendant. The said notice was served on the defendant as evidenced by postal acknowledgement - Ex.P24. The defendant has replied under Ex.P25, wherein it is stated that "they have attended to the system many time and there might have been some points which are not only to your satisfaction. In this respect we would like to have a detailed technical discussion on what has been done and the problems that are containing in the system".
Therefore, this should be read along with previous correspondences made that they have taken measures to upgrade the system and to correct the problems cropped up. Therefore, the plaintiff got issued notice at Ex.P26 rejecting the equipment under Clause 1.24.00 of the contract and called upon the defendant to pay entire costs of equipment as it was not commissioned in accordance with the contract. In the said notice, they demanded Rs.1,32,94,124/- after adjusting an amount of Rs.15,23,566/- by encashment of Bank Guarantee, claim is made against the defendant to the tune of Rs.1,17,70,561/- To the said notice, the defendant had replied dated 62 O.S.No.8767/2006 12.10.2004 as per Ex.P27, wherein they informed the KPCL that they are reviewing the issues raised by the plaintiff in the above said letter and revert back to the plaintiff within 15.11.2004. Again as per Ex.D9 dated 07.12.2004 they informed the plaintiff in detail about the facts happened and also made it clear that PPS problems were attended to some extent and LCS system started functioning, but again the communication failed and it was found that thin Ethernet cable supplied by BHEL has become unreliable. Only in the year 2000 and 2001 they mainly concentrated on incorporating various additional displace on KPCL's reply which are truly beyond their scope of work and also they attended urgent repairs and replacement of hardware supplied by them 5 years back due to fast changing of computer technology. The detailed SAT at Kadra with KPCL representatives were carried out during February 2002, these Test Reports are signed by the KPCL Engineers on 14.02.2002 and had been handed over to the Superintending Engineer by their Commissioning Engineer. During this time their Commissioning Engineer also conducted training of the Site Operation Staff. Therefore, 63 O.S.No.8767/2006 because of fast changing configuration technology it is not feasible to spend 6 years for maintaining the system due to delay which are beyond their control. Therefore, they requested that the Bank Guarantee of Rs.15,23,566/- which was forfeited, shall be refund to them. Therefore, in view of my finding on Issue Nos.6 and 7, it is clear that as per the specification only they have supplied the equipments which were erected and installed and they attended to it for long 5-6 years and under what circumstances it was not updated despite they being carried repairs. Their claim is justified that they are not liable to pay the value of the contract money paid what is claimed by the plaintiff nearly 6 years after the supply of equipments. Therefore, the plaintiff is not justified in contending that the defects which were noted in the notice were not denied by them, as such they are liable to make good of it. Therefore, the evidence brought on record discussed hereinabove while appreciating the main issues goes to show that the defendant had fully performed the contract. As such, as rightly argued by the learned counsel for the defendant the contract stands discharged.
64 O.S.No.8767/2006
38. The learned counsel for the defendant has relied on a decision reported in (1983) 3 Supreme Court Cases 561, in the case of Commissioner of Income Tax, Bombay City-III v. Shanthilal P. Ltd., wherein it is held that:
"A contract is settled when it is either
performed or the promise dispenses with
remits wholly or in part, the performance of the promise made to him or accepts instead of it any satisfaction which he thinks fit".
39. He has also relied on a decision reported in (2009) 1 Supreme Court Cases 267, in the case of National Insurance Company Ltd. V. Boghara Ply Fab (P) Ltd., wherein it is held that:
"When a contract has been fully performed there is a discharge of contract by performance".
Here, in this case on hand, throughout they are maintaining that they performed their contract and fulfilled the obligation by supply of equipments in the year 1996 itself, erection and installation were made. 5-6 years after the problems cropped for the reasons of mismatching of 65 O.S.No.8767/2006 configuration because of change in technology and even thereafter also they updated the system. Therefore, contract was fulfilled was the case by the defendants. Therefore, there is no liability on their part to repay the contract amount, as there was no breach occurred because of their inaction. Therefore, the plaintiff has not satisfactorily established any reasons for termination of the contract. Therefore not entitled to refund of contract money by way of damages, compensation or penalty under Section 74 of the Contract Act.
40. He has relied on a decision reported in (2011) 10 Supreme Court Cases 300, in the case of Phulchand Exports Ltd. v. O.O.O.Patriot, wherein:
"The Hon'ble Supreme Court had directed the respondent to repay the consideration given by the petitioner on the ground that the respondent has failed to deliver the goods and observed that refund/reimbursement may be awarded only when there is no delivery of goods".
Here, in the present case, in the year 1996 itself as per contract specifications equipments were delivered, supplied 66 O.S.No.8767/2006 and they were installed, started functioning, Officers of the KPCL were trained to operate it and evidence shows that they attended the necessary repairs, updating the system. Therefore, there are ample circumstances to take a view that contract has been fully performed and there is discharge of its performance. Having taken into consideration of the change of technology, if the old systems were not responding to the present need and added to the PPS and other equipments supplied by BHEL are not co-related to the earlier configurations supplied by the defendant, the plaintiff cannot claim damages by way of penalty from the defendant.
41. Therefore, in the considered view of this court, even though the plaintiff has come up with the suit with the cause of action that on 01.10.2004 by issuing notice terminated the contract with the defendant and filed the present suit seeking damages. But for the detailed reasons discussed hereinabove it is held that the plaintiff has failed to prove that they are entitled to recover the amount from the defendant or the defendant is liable to pay the amount 67 O.S.No.8767/2006 claimed by the plaintiff. Accordingly, Issue No.3 is answered in the negative.
42. Issue No.4:-
In this case, the plaintiff has claimed interest on the suit claim at the rate of 12% p.a. with annual rests from 01.10.2004 to 31.08.2006. The learned counsel for the plaintiff vehemently argued that commercial rate of interest is 18% p.a. to 24% p.a. However, the plaintiff has restricted itself to 12% p.a. which is well within the interest rate of interest of commercial lending. He urged that the plaintiff has suffered huge losses as it was not able to commission the project on time, resulting in losses to the State of Karnataka, as well these losses can be compensated only by way of interest. Hence, prayed that same be allowed.
43. In view of my finding on Issue Nos.1 to 3, 6 and 7, it is needless to say that as per the contractual agreement the defendant have fulfilled by supplying the equipments, erected and commissioned. There is negligence and delay in handling it and it is held that there 68 O.S.No.8767/2006 is no breach of contract was resulted on the part of the defendant and there is no liability to pay the amount by the defendant to the plaintiff. As such, question of harping upon to decide the interest what is claimed by the plaintiff doesn't arise at all. Even otherwise, under Section 3 of the Interest Act, 1978, which prohibits the court to award interest upon interest i.e., compound interest. There are number of decisions of Hon'ble Apex Court, wherein it is observed that directing the party to pay dues with compound interest would amount to unjust enrichment in favour of claimant. Therefore, it is held that the plaintiff has failed to prove that they are entitled to get interest at the rate of 12% p.a. compounded yearly rests on the suit claim. Accordingly, I answer Issue No.4 in the negative.
44. Issue No.5:-
In this case, in the written statement filed by the defendant in para No.13 a specific contention was raised that for the purpose of the written statement the defendant is referred to as AREVA T & D India Limited. The defendant was previously and prior to the institution of the suit named 69 O.S.No.8767/2006 M/s.Cegelec India Ltd., M/s.Alstom Systems Ltd. and M/s.Alstom Transmission and Distribution Systems Ltd., is a Company incorporated under the provisions of the Companies Act, 1956. AREVA T & D Systems Limited has been merged with AREVA T & D India Limited effective from 18.09.2007 consequent upon passing of the order by the 3 High Courts of Calcutta, Delhi and Madras sanctioning the amalgamation. The High Courts order also includes dissolution of the transferor Company without winding up.
But the plaintiff has chosen to file the suit against M/s.Alstom Transmission and Distribution Systems Ltd. and later amended as M/s.Alstom T & D India Ltd. as per order dated 04.06.2012. Therefore, the learned counsel for the defendant vehemently argued that when in para 13 of the written statement dated 07.11.2007 a specific contention was raised, even thereafter also the plaintiff did not take any pains to amend the plaint incorporating the correct name of the Company against whom the plaintiff has sued. As such, the suit filed by the plaintiff against the defendant who is a wrong person is a nullity and that alone is sufficient to dismiss the suit.
70 O.S.No.8767/2006
45. The learned counsel for the plaintiff vehemently argued that the defendant has not produced any order passed by the High Courts of Calcutta, Delhi and Madras for amalgamation etc. In the cross-examination of DW-1, he has admitted that the present defendant is the one which is entered into the agreement with the plaintiff previously. Therefore, in the absence of any documentary evidence produced by the defendant, there is no basis for such contention and prayed that Issue No.5 be answered in the negative against the defendant.
46. Here, not only in para 13 of the written statement a specific defence was taken and DW-1 in the cross-examination in page No.10 has categorically stated that when the defendant entered into contract with the plaintiff, originally its name was M/s.Cegelec India Ltd, subsequently it was changed to M/s.Alstom T & D India Ltd. then to AREVA T & D India Limited and present defendant is the one it has entered into agreement with the plaintiff previously.
71 O.S.No.8767/2006
47. Here, no doubt though it is pleaded that as per the orders passed by the High Courts of Delhi, Calcutta and Madras, amalgamation was made. But, copies of the courts order is not produced. That alone is not a ground for the plaintiff to contend that they can maintain a suit against the defendant i.e., M/s.Alstom T & D India Ltd. Here, the correspondences made with the defendant Company shows that previously M/s.Alstom Systems Ltd. and again M/s.Alstom T & D India Ltd. had transacted with them and present defendant was the party for the contract. But, in Ex.P29 the reply notice given by the defendant Company way back in 16.11.2005 itself have informed the plaintiff by clearly stating that "your notice dated 21.09.2005 to our clients M/s.Alstom Transmission and Distribution Systems Ltd. (Now known as AREVA T & D Systems India Limited). having its office at 14th Floor, Pragati Devika Tower, 6 Nehru Place, New Delhi - 110 019, has been placed in our hands with instruction to issue the following reply". That means, the plaintiff was duly informed about the amalgamation and the change of name of the Company as AREVA T & D Systems India Limited. 72 O.S.No.8767/2006 Therefore, even after knowing the said fact, in 2006 plaintiff filed suit against M/s.Alstom Transmission & Distribution Systems Ltd. Again got amended on 04.06.2012 as M/s.Alstom T & D India Ltd. That means, even though in 2007 itself in para 13 what was the change brought due to amalgamation of the Company and now they called as "AREVA T & D India Limited" by specifically stating that for the purpose of the written statement AREVA T & D India Limited is referred as the defendant. The plaintiff ought to have issue notice to the defendant to furnish the correct particulars, basis for change of name and orders passed by the High Courts of Delhi, Calcutta and Madras and after ascertaining it should have impleaded the correct Company as party to make a claim against them. Because, when the specific case was made by them admitting that M/s.Alstom T & D India Ltd. was the party entered into contract with the plaintiff, but equally it is amalgamated and presently they are running the business under the name and style AREVA T & D India Limited and that was made known to the plaintiff in the reply notice - Ex.P29. Because this copy of the notice is produced by the plaintiff itself and the plaintiff 73 O.S.No.8767/2006 has not chosen to make any effort to ascertain the same and failed to take steps to implead the correct defendant in the suit. Even no notice is given to the defendant to furnish particulars. Therefore, one thing is clear that there is justification for the defendant Company to put forth their contention that presently they are dealing with the name and style AREVA T & D India Limited, they never denied that previously at the time of entering into contract with the plaintiff under Ex.P2 and Ex.P3, they were running the business under the name and style M/s.Alstom T & D India Ltd. As there is a claim against the defendant Company, to execute the decree if any, the plaintiff ought to have arrayed the correct person as defendant, as rightly argued by the learned counsel for the defendant. Therefore, it is a clear case that even after the defendant has taken such defence in the written statement and this court has framed issue on it, the plaintiff has not taken any pains to change the name of the defendant Company in the plaint, in the line what is contended by them for the reasons best known to them. Therefore, as it is they proceeded the suit against the non-existent Company as on the date of suit. As rightly 74 O.S.No.8767/2006 argued by the learned counsel for the defendant, on the date of suit there is no entity by name M/s.Alstom Transmission and Distribution Systems Ltd. as such, no decree can be passed against a non-existent person.
48. He has relied on a decision reported in ILR (1977) 1 Delhi 699, in the case of Saiyed Mushtaq Ali Khan v. National Fire and General Insurance, wherein it is held that:
"A decree against a non-existent party is a nullity".
Even in that case, their lordships have observed that amendment could not be allowed with retrospective effect. In that case, their lordships have pointed out that the court noted that an appeal was filed against a non-existent party and it was known to appellant when he filed the appeal that the respondent was non-existent. By applying the said principles, the plaintiff cannot take advantage of the evidence of DW-1 that he admits that the defendant was a party entered into contract with the plaintiff and they did not produce the court order. When reply notice itself makes it clear about the change of name of the Company and 75 O.S.No.8767/2006 specific defence was taken in para 13 of the written statement, even thereafter also the plaintiff got amended the plaint changing the defendant's name showing its previous name. Therefore, as on the date of suit the present defendant Company was non-existent, as such decree cannot be passed against a non-existent party, is a nullity. This alone is sufficient to dismiss the suit. Accordingly, I answer Issue No.5 in the affirmative.
49. Issue No.8:-
In the written statement filed by the defendant, it is contended that the suit claim claimed by the plaintiff is hopelessly barred by time. As per Ex.P2 and Ex.P3 - Award of Contracts are of 1995, equipments were supplied in December 1996, as per the correspondences made itself shows that supply and erection was made in the year 1997. According to the defendant commissioning was effected at 1997 to 1999 both at Kadra and Kodasalli. In the presence of the Chief Engineer (Electrical Design) and the Site Engineer of Defendant Company, Site Acceptance Test was conducted during February and May, 2002. Therefore, 76 O.S.No.8767/2006 learned counsel for the defendant invited the attention of the court to Ex.D4 dated 02.11.2000 - Letter addressed to Technical Director, Karnataka Power Corporation Ltd., reporting that the errors in BHEL systems were rectified, but thin Ethernet cable link between LCS and BHEL systems supplied by BHEL has failed. However, it is informed that they have completed erection work at Kodasalli Power House and further work can only be taken after when BHEL system is commissioned. Ex.D5 is the another letter executed by Sri.Shums Parvez Ahmed, Software Specialist of Defendant Company addressed to Superintending Engineer, KPCL, Kadra, regarding checking of erection and installation and reason for communication could not be established and requested them to arrange to do bit marshalling and PPS and of isolator system command. Ex.D6 another letter addressed to Chief Engineer (Electrical Design) that because of fault is with PPS supplied by BHEL at Kodasalli problem cropped up and requesting them to ensure availability of PPS system from BHEL. Again Ex.D7 with reference to earlier letters it is informed by the defendant that the Acceptance Test for II Level Control 77 O.S.No.8767/2006 System at Kodasalli Power Plant had been completed on 18.5.2002 during the last visit of their representative -
Mr.Shums Parvez Ahmed, the Acceptance Test Reports are available with the Superintending Engineer, Kodasalli. That is the reason, they informed that Kadra Level II System is running uninterrupted since the Acceptance Tests were conducted on 14.02.2002 and Kodasalli Level II System is running uninterrupted since the Acceptance Tests were conducted on 18.05.2002. Therefore, in Ex.D7 itself they reported that all the nodes at Kadra and Kodasalli have been running uninterrupted since February and May respectively. In Ex.D8, it is reported that Alstoms Systems supplied were completed in the last quarter of calendar 1996 after inspection, approval by KPCL and in line with agreed contractual schedule, erection of hardware at Kadra was completed in the middle of 1997 and 14th February both KPCL and Alstoms signed completed SAT, the original reports were submitted to the Superintending Engineer.
50. The learned counsel for the defendant has elicited in the cross-examination of PW-1 that tests were conducted and reports were with the Superintending Engineer and 78 O.S.No.8767/2006 available in their office. It is indicative of the fact that non- production of such reports in this suit is deliberate. Therefore, it is clear that commissioning was completed during May 2002 itself. Even though further correspondences are made by the plaintiff regarding the problems and why that occurred etc., are suitably explained by the defendant in their written statement as well as elicited from the mouth of PW-1 in the cross-examination. Therefore, the plaintiff got issued legal notice on 21.09.2005 for purported termination of contract and after delay of 1 year filed this suit on 30.08.2006. Therefore, learned counsel for the defendant drew the attention of the court to Article 54 of the Limitation Act, that limitation period starts from the date fixed for performance. Therefore, as per the terms of the agreement, equipments were supplied, erected and commissioned, can be gathered from the evidence brought on record and it was completed. As per Ex.P2 and Ex.P3 - date of performance was in the year 1997 itself. Therefore, within 3 years from the said date, the plaintiff ought to have file the suit. Even if for argument sake, having regard to the further 79 O.S.No.8767/2006 correspondences are made between the plaintiff and the defendant, as per the intimations given by the defendant it is clear that SAT was done and reports were submitted to the Superintending Engineer in the month of February and May, 2002 at both Kadra and Kodasalli. Therefore, atleast within 3 years from the said date, claim should have been made. Therefore, suit should have been filed within the end of the year 2005 and certainly not from the date of issue of notice of termination as contended by the plaintiff. Therefore, the legal notice terminating the contract - Ex.P26 dated 01.10.2004 doesn't stand for reasons that contract is performed and obligations stand discharged during February and May, 2002 itself. As such, again contract cannot be terminated, as rightly argued by the learned counsel for the defendant. Therefore, the claim made by the plaintiff against the defendant is barred by limitation. Accordingly, I answer Issue No.8 in the affirmative.
51. Issue No.9:-
In view of my detailed finding on Issue Nos.1 to 8, the plaintiff is not entitled to recover the suit amount from the 80 O.S.No.8767/2006 defendant as prayed. The claim regarding awarding of interest is also not sustainable. The defendant in the written statement have questioned that the Bank Guarantee of Rs.15,23,566/- amount was forfeited and adjusted by the plaintiff is illegal. The learned counsel for the defendant contended that same be ordered to be return to the defendant. Here, no counter claim is claimed by the defendant and no issue is raised on this point. As several correspondences are made to update the system and to rectify the problems, that was responded by the defendant can be gathered from the evidence brought on record. Therefore, inconvenience was caused for the plaintiff, for which such steps of forfeiting the Bank Guarantee amount deposited was made and informed by way of notice - Ex.P26. Under such circumstances, order cannot be passed to return the said amount in favour of the defendant and it is held that suit filed by the plaintiff is accordingly liable to be dismissed. Accordingly, I answer Point No.9 in the negative.81 O.S.No.8767/2006
52. Issue No.10:-
In view of my detailed finding on Issue Nos.1 to 9 suit filed by the plaintiff is accordingly liable to be dismissed, Hence, I proceed to pass the following:
ORDER Suit of the plaintiff filed against the defendant is hereby dismissed.
Under the circumstances, the parties shall bear their own costs.
Draw a decree accordingly.
(Dictated to the Judgment Writer on computer, typed by her, the transcript thereof corrected and then pronounced by me, in open Court, this the 10th day of January 2017).
(BAILUR SHANKAR RAMA) ND 42 ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE I. List of witnesses examined on behalf of:
82 O.S.No.8767/2006
(a) Plaintiff's side:
P.W. 1 - Sri.Ramesh.U.C.
(b) Defendants' side:
DW.1 - Dhananjay Ketkar II. List of documents exhibited on behalf of:
(a) Plaintiff's side:
Ex.P1 Authorization Letter dated 21.04.2010
Ex.P2 & P3 Agreements dated 02.08.1995
Ex.P4 Fax dated 20.12.1997
Ex.P5 Letter dated 03.05.2000
Ex.P6 Minutes of the Meeting held on
30.06.2000
Ex.P7 Letter dated 19.09.2000
Ex.P8 Copy of the letter dated 26.09.2000
Ex.P9 Minutes of the Meeting dated
12.11.1998
Ex.P10 Record of Discussion dated 06.09.2000
Ex.P11 Letter dated 27.03.2001
Ex.P12 Letter dated 14.12.2001
Ex.P13 Reply Letter dated 13.02.2002
Ex.P14 Fax dated 03.07.2001
Ex.P15 Reply dated 13.07.2001
Ex.P16 Plaintiff's Rejoinder dated 26.07.2001
Ex.P17 Message Confirmation Report
Ex.P18 Letter dated 10.10.2001
Ex.P19 Postal Acknowledgement
Ex.P20 Message Confirmation Report
Ex.P21 Letter dated 17.10.2001
Ex.P22 Letter dated 06.03.2002
Ex.P23 Letter dated 28.02.2003
Ex.P24 Postal Acknowledgement
Ex.P25 Copy of letter dated 28.03.2003
Ex.P26 Letter dated 30.09.2004/01.10.2004
Ex.P27 Letter dated 12.10.2004
Ex.P28 Notice dated 21.09.2005
Ex.P29 Reply dated 16.11.2005
83 O.S.No.8767/2006
Ex.P30 Postal Cover
(b) Defendants' side:
Ex.D1 Tender Notification dated 15.01.1994
Ex.D2 Start Program (Status) Site Test Report
Ex.D3 UnixWare Products Software License
and Limited Warranty
Ex.D4 Reply dated 02.11.2000
Ex.D5 to 9 Letters
42nd ADDL. CITY CIVIL & SESSIONS
JUDGE, BANGALORE.