Bangalore District Court
M/S Invectra Info Solutions Pvt.Ltd vs Karnataka State Electronics ... on 23 January, 2023
N THE COURT OF THE LXXXVI ADDL. CITY CIVIL JUDGE
AT BANGALORE [CCH.No.87]
Present:
Smt.NERALE VEERABHADHRAIAH BHAVANI, B.A., LLB (Hons)
LXXXVI ADDL. CITY CIVIL JUDGE
Dated this the 23rd day of January, 2023
Com.O.S.No.8075/2017
Plaintiff/s : M/s Invectra Info Solutions Pvt.Ltd.,
A company incorporated under the
Companies Act,
Having its registered office at:
No.815, 3rd Floor, BVL Complex,
Madhapur, Hyderbad-81
Represented by its Managing Director
Mr.Ravindra Babu
(By V.S.K Advocate)
- Vs -
Defendant/s : 1.Karnataka State Electronics Development
Corporation Ltd.,
II Floor, A Block, BMTC TTMC Bldg.
K.H.Road, Shantinagar
Bengaluru-560 027
Represented by its Managing Director
Com.O.S.No.8075/2017
2
2. The Additional Chief Secretary
Department of Labour- Government of
Karnataka, Vikas Soudha
Ambedkar Veedhi
Bengaluru-560 001.
3. The Commissioner
Department of Employment & Training
Government of Karnataka
Kaushalya bhavan, Dairy Circle
Bannerghatta Road
Bengaluru-560 029
(D.1 by M.A.V, Advocate)
(D.2 & 3 by A.G.P, Advocate)
Date of institution
of the suit : 28.11.2017
Nature of the suit
[suit on pronote, suit : Recovery of Money
for declaration and
possession, suit
for injunction]
Date of the commencement
of recording of the evidence: 04.12.2019
Date on which the
Judgment was pronounced : 23.01.2023
Year/s Month/s Day/s
Total Duration 05 01 26
(N.V.BHAVANI)
LXXXVI Addl. City Civil Judge
Bangalore.
Com.O.S.No.8075/2017
3
JUDGMENT
This is the suit for recovery directing the defendant to pay the plaintiff a sum of Rs.2,38,22,601/- together with interest at the rate of 12% p.a from the date of suit till realization and other consequential relief.
2. The brief facts of the plaintiffs' case are as under:
The plaintiff is a company incorporated under the Companies Act, 2013 having its registered office at the above-mentioned address and involved in the business of providing a full range of custom, dynamic and interactive web application design and development services.
3. The plaintiff submits that under the e-tender dated 01/07/2015 vide Tender No.KSEDC/ITS/24/2014-15 published on the e-procurement website of Government of Karnataka, bids were invited by the 1st defendant on behalf of other defendants Department of Employment & Training (DET) for design supply, installation, commissioning and maintenance of Digital Content Management Software (DIGITAL LIBRARY) for implementation of National Employment Service Scheme that aimed to provide employment opportunities to unemployed individuals and Vocational Training scheme for Com.O.S.No.8075/2017 4 the purpose of training youth in Government run Industrial Training Institutes (ITI) in the state. The plaintiff submitted its bid on 14/07/2015 and the plaintiff became a successful bidder and thereafter, the 1st defendant placed a purchase order dated 31/07/2015 at bearing No.KSEDC/ITS/66/2015-16, at a value of Rs.13,91,58,663/-. In pursuance of the Purchase Order, the 1st defendant executed a Procurement and Supply Agreement dated 18/12/2015 which was executed by its Director- Technical, which Agreement set out the terms of the supply and all other terms and conditions of the order. The original of the Agreement was retained by the 1st defendant and photocopy was handed over to the plaintiff. In furtherance of the Purchase Order and the agreement, plaintiff commenced the work and made necessary investments with respect to hiring the necessary talent for execution of the Project, invested time, effort and money for the design of the software, content for the Digital Library and procurement of necessary computer hardware with other materials required in order to complete the Project. Specifically, to design the software and content for the Digital Library the plaintiff has invested of about a sum Com.O.S.No.8075/2017 5 Rs.1,86,98,176/- towards procurement of materials and services like furniture, development of digital library software and content, Master Server, Streaming Server cost, Consultancy fee and other related expenses. The plaintiff is also burdened with the payment of demurrage charges to Panorama Solutions Pvt. Ltd., the suppliers who have manufactured the computer tables and are forced to stock them in their premises due to the delay in response from the 1st defendant's end. To evidence the same a letter dated 02/02/2016 from Panorama Solutions is produced.
4. The plaintiff further submits that in order for it to fulfill its obligations under the Tender and the Agreement, it required the 1st defendant to obtain a detailed list of 47 ITIs as specified by the other defendants, their addresses and contact details which was though supplied by the 1st defendant on 20/10/2015 and 21/10/2015 but in an incomplete manner thus, hindering the plaintiff from going forward with the installation and commissioning of the Digital Library to the ITIS. The plaintiff since then has continuously been following up with the 1st defendant by way of e-mails and letters dated 11/07/2016, 15/07/2016 13/09/2016 Com.O.S.No.8075/2017 6 requesting it to provide necessary information in order to facilitate the completion of the project. Moreover, even the plaintiff's personal visits to the defendant's office did not yield any benefit to the situation. The plaintiff has invested a huge sum of money and resources for implementation and completion of the Project, it is exposed to great hardship and it is also burdened with fulfilling the orders for hardware, materials for which it has already placed Purchase Orders and has paid advances, since all those materials have been specifically ordered for the purpose of the Project. In addition, the plaintiff is also burdened with the payment of salaries and remuneration that have been already been paid and is now being paid to the personnel who have been hired to develop the software for the implementation of 1st defendant's Project. The plaintiff also expanded his office premises by taking two additional floors in order to house the personnel required to execute the project work., by entering into a separate lease dated 10/09/2015 and thus has ended up incurring expenses towards the lease of the premises also, in addition to the other expenses. In view of the undue delay in implementation and completion of the project due to the Com.O.S.No.8075/2017 7 shortcomings of the defendants, the plaintiff's reputation is also at stake, since it is unable to fulfill its commitments made to several vendors and suppliers including companies like Dell Computers with which it has tentatively placed orders for purchase of Desktops, which will become out dated if the purchase of same is not completed within a reasonable time. Under legal notice dated 6/10/2016, the aforementioned concerns have been intimated to the defendant and a sum of Rs.1,86,98,176/- has been claimed. Despite having received the notice, the defendants have not come forward to comply with the obligations i.e. to furnish the details demanded by the plaintiff. The 1st defendant failed to respond satisfactorily to the situation leading to huge loss in terms of not only money but also reputation.
5. The plaintiff submits that after waiting for a long time for the 1st defendant's in its reply vide notice dated 08/12/2016, the plaintiff expressed its intention to refer the dispute to arbitration in accordance with the terms of the Arbitration Agreement under the agreement dated 18/12/2015 entered into between the plaintiff and the 1st defendant. The 1st defendant failed to comply with the Com.O.S.No.8075/2017 8 demands to settle the issue amicably. Since, non- performance of the 1st defendant's obligations under the Agreement dated 18/12/2015 has led to a dispute, the plaintiff issued the notice dated 08/12/2016 with respect to the same. On 09/01/2017, the 1st defendant sent an untenable and vague reply to the notices issued by the plaintiff, denying the very execution and existence of the agreement styled "Agreement for procurement and supply"
dated 18/12/2015 with the plaintiff and in turn the existence of the Arbitration agreement itself. Thereupon, a notice dated 09/02/2017 was issued upon the defendant still giving it the time to give effect to the Purchase Order dated 31/07/2015 and act in accordance with the terms of the Agreement dated 18/12/2015. The 1st defendant was also given fifteen days' time to reply to the notice and another chance to still be able to refer and settle the matter through Arbitration. The defendant has casually furnished a delayed and blatant reply dated 15/03/2017, yet again denying the existence of the very agreement styled "Agreement for procurement and supply" dated 18/12/2015. By virtue of a delayed and untenable reply by the 1st defendant to the plaintiff's notice Com.O.S.No.8075/2017 9 dated 09/02/2017, the 1st defendant has itself waived the option for reference and settlement of the dispute by Arbitration and thus, any reference to the Arbitration at any stage on a later date will be legally unsustainable. Hence, the plaintiff has no other option but to approach this Hon'ble Court seeking for a relief of recovery of money invested by it in the 1st defendants' project. The 1st defendant is liable to pay Rs.1,86,98,176/- towards the amount invested by the plaintiff in the project along with an interest charged at the rate of 12% per annum from 24 th November 2017 and Rs.10,00,000/- towards inconvenience caused after having prepared the documents knowing to be incorrect and thereby causing injury to the plaintiff. The defendants No.2 and 3 are proper parties to the suit, since 1 st defendant has acted under their direction while calling for tender, receiving EMD, completing the tender process, placing the order and entering into agreement for procurement and supply. Hence the suit.
6. After the institution of the suit, the suit summons was served on the defendants and appeared through their counsel. The defendant No.1 has filed its written statement Com.O.S.No.8075/2017 10 by contending that the suit of the plaintiff is neither maintainable in law nor on facts and liable to dismissed in limine. The plaintiff has not approached this Hon'ble Court with clean hands and therefore, the suit of the plaintiff is liable to be dismissed at the threshold. It is submitted that the Karnataka State Electronics Development Corporation Limited (KEONICS)- 1st defendant, a Government of Karnataka Enterprise a certified organization, is in existence since 1976 with the sole objective of promoting electronics industries in Karnataka. Main objective is to ensure that Karnataka is always in the forefront of electronics and IT, KEONICS have been providing high quality infrastructure for IT industries, spreading IT education to the masses and providing state-of-the products and service for e-Governance. KEONICS focuses on setting up world-class infrastructure for the electronics and IT related industries in the state. KEONICS have diversified into IT related activities in 1990. It is KEONICS' endeavour to provide state-of-the technology solutions to customers to keep pace with the changing technology.
Com.O.S.No.8075/2017 11
7. It is submitted that there is no privity of contract between the plaintiff and the 1st defendant. Therefore, the present suit itself is not maintainable and on this ground alone, the plaint is liable to be rejected at the threshold.
8. The allegation made in paragraph no.3 of the plaint is not within the knowledge of this defendant. The allegations made in paragraph no.4 are denied and the plaintiff is put to strict proof of the same except for publication of the e-tender dated 01.07.2015. It is further contended that the 1 st defendant is yet to enter into an agreement with the Department of Employment & Training (DET), the Government of Karnataka. Therefore, the 1st defendant has not entered into any agreement with the plaintiff as alleged.
9. The allegation made in paragraph no. 5 of the plaint is denied as false and the plaintiff is put to strict proof of the same. It is pertinent to mention that the progress done by the Vendor with respect to the implementation of the project is not intimated to the 1st defendant. This itself show that the averments that the plaintiff had made several investments is false and the said statements are made by the plaintiff only to suit his case and to get a favourable order in his favour.
Com.O.S.No.8075/2017 12
10. The allegation made in the 1 st portion of the plaint of para No.6 that the 1st defendant to obtain a detailed listed of 47 ITI's as specified by the other defendants, all though supplied by the 1st defendant on 20.10.2015 and 21.10.2015 but in an incomplete manner thus, hindering the plaintiff from going forward with the installation and commissioning of the Digital Library to the ITIs are denied false. It is pertinent to note that the 1st defendant vide letter dated 10.09.2015 had requested the DET to provide the list of 47 ITI where project were to be implemented. Since, the DET did not provide the same, the exact list of it was not finalize. It regard the second portion of the allegation in paragraph no.6 of the plaint that the plaintiff since then has continuously been following up with the 1st defendant by way of e-mails correspondence and investment made are denied as false and the plaintiff is put to strict proof of the same.
11. In regard the allegations made in para No.7 are denied as false. It is contended that the 1 st defendant got reply sent to the plaintiff vide letter dated 09.01.2016 and specifically denied the execution and existence of the Com.O.S.No.8075/2017 13 agreement styled 'Agreement for procutment and supply dated 18.12.2015 with the plaintiff'.
12. In regard to the allegation made in para No.8 and 9 are denied as false. It is contended that the 1 st defendant denies the very execution of the agreement dated 18.12.2015 and further as per the decision of the management of the 1st defendant a showcause notice was issued to Sri.Basavarajendra, then the Director-Technical through departmental of IT -BT and S & T with respect to the alleged agreement executed between the 1st defendant and the plaintiff and the same was intimated to the plaintiff advocate vide letter dated 15.03.2017 and the said proceedings initiated by the 1st defendant is still pending.
13. The averment made in para No.10 and 11 are denied as false. The defendant no.1 is not liable to pay any amount to the plaintiff. It is further contended that the plaintiff had applied under RTI and obtained the certified copy of the entire file pertaining to digital library project from the 1st defendant. However, the entire file is subject to verification and comparison with the original file. The allegations made in para No.13 to 17 are denied as false and Com.O.S.No.8075/2017 14 put the plaintiff to the strict proof of the same. The plaintiff has filed the present suit with malafide intention and lacks bonafide. The court fee paid is not sufficient and sought for dismissing the suit with exemplary cost.
14. The defendant No.2 and 3 are filed their written statement by contending that the suit of the plaintiff is not maintainable either in law or on facts and hence the suit is liable to be dismissed. Further the suit filed by the plaintiff is frivolous, vexatious and a speculative one. The plaintiff has not complied with the statutory legal notice under section 80(2) of CPC prior to filing any case against the defendant No.3. The Deputy Director (Purchase), office of Commissioner for Employment and Training Department Kousalya Bhavana, Near Bengaluru Dairy Circle, Bengaluru 560029, is appointed as litigating conducting officer.
15. It is submitted that the plaintiff is guilty of suppressio vari and suggestio falsi and as such he has not approached this Hon'ble Court with clean hands and accordingly, he is not entitled for any relief.
16. The averments made in para 1 to 3 is not applicable to this defendant. Regarding para 4 of the plaint that the e-
Com.O.S.No.8075/2017 15 tender dated as referred to by the plaintiff on the e- procurement website by 1-7-2015 has been published by KEONICS and not by this Department. It is also further submitted that the contention of the plaintiff that bids were invited by KEONICS on behalf of this Department is not maintainable for the reason that no agreement as such had been made between KEONICS and Directorate of Employment and Training, the Department had vide it's letter dated 27-3-2015 requested Keonics to supply the technical specification and configuration as mentioned therein for the digital library. However, M/S KEONICS. had not undertaken any further steps to enter into an agreement with the Department nor have they supplied the digital library materials within the stipulated 12 weeks as per the terms of the supply order dated as 27-3-2015. It is further submitted that the doctrine of privity of contract provides that a contract cannot confer rights nor impose its obligations upon any person who is a party to the contract. Hence, the agreement entered into by the plaintiff with the 1st defendant is to not liable enforced against the 1st defendant alone.
Com.O.S.No.8075/2017 16
17. The averments made in para 5 to 13 of the plaint is not applicable to these defendants. Regarding para 14 of the plaint, it is submitted that the contentions of the plaintiff in this case is not valid as there was no agreement entered into by the plaintiff with the 3rd defendant and further, the digital library materials had also not been supplied by KEONICS within the stipulated 12 weeks as per the terms of the supply order dated 27-3-2015.
18. The averments made in para 15 to 18 of the plaint are entirely false and not correct. No legal notice has been received in connection to this. There is no cause of action arose to file the above suit and one alleged is created and concocted one. All other allegations which are not specifically traversed herein are hereby denied in toto and sought for dismissing the suit with exemplary cost.
19. Based on the pleadings, my predecessor in office has framed following issues:
1. Whether the plaintiff proves that the 1 st defendant is liable to pay Rs.2,38,22,601/- along with interest at 12% per annum from the date of suit till realization?
2. Whether the 1st defendant proves that the agreement dated 18.12.2015 is a forged and fabricated document?
Com.O.S.No.8075/2017 17
3. Whether the plaintiff is entitled for the relief as prayed for?
4. What order or decree?
ADDITIONAL ISSUE No.1
1. Whether the plaintiff proves that the existence of a valid agreement date 18.12.2015 entered with the defendant No.1?
20. In order to prove the case, the authorized representative of the plaintiff has been examined as P.W.1 and got marked the documentary evidence, which are at Ex.P.1 to Ex.P.47. On behalf of the defendant No.3, the authorized representative of the defendant No.3 got examined as D.W.1 and got marked the documentary evidence which are at Ex.D.1 to Ex.D.7. On behalf of the defendant No.1, the authorized representative of the defendant No.1 got examined as D.W.2 and got marked at Ex.D.8. During the course of cross- examination of D.W.2 was confronted with Show casue notice issued to Basavarajendra, copies of Procurement and supply agreement dated 18.12.2015 and the same was marked as subject to objection as Ex.P48 to 50 respectively.
Com.O.S.No.8075/2017 18
21. After the conclusion of the evidence of the defendants, the plaintiff had filed an application for summoning Sri.Basavarajendra as a witness, who was the then Director of defendant No.1 and the same was allowed and the said Sri.Basavrajendra was examined as D.W.1 and Ex.D.9 is marked.
22. Heard the arguments.
23. I answer the above issues as under:
Issue No.1 : Partly in the affirmative
Issue No.2 : In the negative
Issue No.3 : Partly in the affirmative
Addl. Issue No.1: In the negative
Issue No.4 : As per my final order
for the following;
REASONS
24. Issues No.1 & 2 and Addl.Issue No.1:- Since
all these issues require common discussion, they will be taken up together for discussion in order to avoid repetition of facts.
The learned counsel for the plaintiff has vehemently argued that the defendant No.1 had called for e-tender for Com.O.S.No.8075/2017 19 design, supply, installation, commissioning and the maintenance of digital content management software for implementation of National Employment Service Scheme on behalf of defendant No.2 and 3, in which the plaintiff was a successful bidder and thereafter the first defendant placed the purchase order dated 31.07.2015 for Rs.13,91,58,663/- and in pursuance of the purchase order, the defendant No.1 executed a procurement and supply agreement dated 18.12.2015 and the original of the agreement was retained by the 1st defendant. The plaintiff has obtained the agreement and records of proceedings of defendant No.1 by filing application through RTI and marked at Ex.P.44, which shows that the defendant No.1 had called for e-tender for the implementation of the National Development Service Scheme to provide employment opportunity to unemployed individuals and vocational training for youth in ITI. The plaintiff was successful bidder and in pursuance of the e- tender, the defendant No.1 had issued purchase order and entered into agreement with plaintiff at Ex.P49. The plaintiff has invested huge amount of money and procured the material and other accessories for the implementation of the Com.O.S.No.8075/2017 20 project and taken premises for lease and invested on personnel. Inspite of the existence of the agreement, the defendant No.1 has contended that there is no agreement and not liable to pay the suit claim. The plaintiff has suffered huge loss by incurring huge investment and their reputation is also damaged. Hence, the defendants are liable to pay the suit claim.
25. On the other hand, the learned counsel for the defendant No.1 has contended that the defendant No.1 has not executed any agreement much less the agreement dated 18.12.2015 in favour of the plaintiff as alleged. The 1 st defendant was yet to enter into an agreement with department of employment and training, Government of Karnataka and therefore, it was impossible for the 1 st defendant to enter into an agreement with plaintiff and there was no contract between the plaintiff and 1 st defendant. The 1st defendant had always been following with the Department of employment and training to provide a list of 47 ITI's including the letter dated 10.09.2015. PW.1 had admitted that the material was not delivered to the Department of employment. D.W.3 had admitted that there is no contract Com.O.S.No.8075/2017 21 between the plaintiff and 1st defendant and draft agreement was pending execution. Annexure C to the draft agreement provides payment terms and payment schedule and the same is released to KEONICS after entering into agreement and part payment may be considered to plaintiff on request and receipt from DET. Purchase order provides for back to back agreement with defendant No.1 KEONICS. There was no back to back agreement. The defendant No.1 has forwarded the draft agreement to be executed between the defendant No.1 and the plaintiff but the said agreement was not finalized by DET. The plaintiff was aware that the DET did not finalize the agreement. The 1st defendant had invited tender in response to DET, which is subject to agreeing upon the terms which will govern a purchase when a purchase order is placed, is not the same as placing a purchase order. There is no concluded contract and sought for dismissal of the case and relied upon the following decision in Padia Timber Company Pvt Ltd V/s Vishaka patana 2021 (3) SCC 24, wherein the supreme court has observed at para No.54:
It is cardinal principle of law of contract that the offer and acceptance of an offer must be absolute. It can Com.O.S.No.8075/2017 22 give no room for doubt. The offer and acceptance must be based or founded on three components, that is certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this court in Haridwar Singh V/s Vagan Sumbrui. An acceptance with a variation is no acceptance. It is in effect and substance simply a counter proposal which must be accepted fully by the original proposer, before a contract is made.
26. In another decision Vedanta Limited V/s Emirates Trading Agency LLCC 2017 13 SCC 243, wherein the Hon'ble Supreme Court has held at para No.12:
Sec.7 of the contract Act, 1872 (herein after referred to as the act) provides that in order to convert a proposal into a contract, the acceptance must be absolute and unqualified. The existence of a concluded contract is a sine qua non in a claim for compensation for loss and damages under section 73 of the act arising out of a breach of contract. If instead of acceptance of a proposal, a counter proposal is made no concluded contract comes into existence.
27. The learned counsel for defendant No.2 and 3 have vehemently argued that there is no privity of contract. The Com.O.S.No.8075/2017 23 defendant no.1 has not supplied any material within 12 weeks from 27.03.2015. There is no agreement between the defendant No.2 and 3 with defendant no.1 and sought for dismissal of the case against them.
28. Considering the rival arguments and the material on record, it is specific case of the plaintiff that the defendant No.1 had invited tender on behalf of the defendant No.2 and 3 for design, supply, installation, commissioning and the maintenance of digital content, management software for implementation of National Employment Service scheme and in pursuance of the tender, the plaintiff had participated and became as successful bidder and thereafter the defendant No.1 had issued a purchase order and also they have entered into agreement dated 18.12.2015 in respect of the tender. In pursuance of the agreement and the purchase order, the plaintiff had invested an amount of Rs.1,86,98,176/- towards the procurement of the materials and services and other related expenses. Inspite of it, the defendants have failed to comply their obligations and due to which the plaintiff has to suffer huge loss which led to the filing of the present suit.
Com.O.S.No.8075/2017 24
29. In order to substantiate its case, the authorized representative of the plaintiff has been examined as P.W.1, who has reiterate the entire plaint averments in his examination in chief in lieu of an affidavit and got marked the documentary evidence, which are at Ex.P.1 to Ex.P.47. Ex.P.1 is the certified copy of the resolution dated 09.11.2017, wherein P.W.1 is authorized to give evidence. Ex.P.2 is the copy of e-procurement portal discloses the bid details of the plaintiff. Ex.P.3 is the purchase order dated 31.07.2015 issued to the plaintiff by defendant No.1. Ex.P.4 is the computerized copy of notice dated 02.02.2016 issued by Panorama Solutions Pvt Ltd. to Mr. Sharath Jetty for taking delivery of 470 sets of tables for ITI colleges in Karnataka. Ex.P.5 is the copy of email dated 20.10.2015 & 21.10.2015 issued by K.M.Jayakumar, Asst. Manager, KEONICS. Ex.P.6 is the copy of the letter dated 11.07.2016 addressed by the plaintiff to defendant No.1 with reference to delay in starting the project. Ex.P.7 is the copy of email dated 15.07.2016 & 13.09.2016 addressed by the plaintiff to defendant No.1 in regard to project. Ex.P.8 is the office copy of notice dated 06.10.2016 issued by the plaintiff to the defendant No.1 for recovery of Com.O.S.No.8075/2017 25 the sum of Rs.2,01,39,828/-. Ex.P.9 to Ex.P.11 are the three postal receipts. Ex.P.12 to Ex.P.14 are the postal acknowledgment. Ex.P.15 is the office copy of notice dated 08.12.2016 issued by the plaintiff to defendant no.1 in regard to appointment of arbitrator. Ex.P.16 to Ex.P.18 are the postal receipts. Ex.P.19 to Ex.P.21 are the postal acknowledgment. Ex.P.22 is the reply dated 09.01.2016 issued by the defendant no. 1 to the plaintiff, wherein the defendant No.1 had denied the execution of the agreement and advising the plaintiff to withdraw the notices dated 06.10.2016 and 08.10.2016. Ex.P.23 is the postal cover. Ex.P.24 is the office copy of the notice dated 09.02.2017 issued by the plaintiff to defendant No.1 to pay Rs.2,01,39,828/-. Ex.P.25 to Ex.P.28 are the postal receipts. Ex.P.29 to Ex.P.32 are the postal acknowledgment. Ex.P.33 is the reply dated 15.03.2017 issued by the defendant No.1 to the plaintiff. Ex.P.34 is the postal cover. Ex.P.35 is the original agreement dated 11.12.2015 between the plaintiff and K3 Technologies Private Limited. Ex.P.36 is the agreement dated 19.09.2015 between M/s.Multi Management Solutions and the Plaintiff for seeking assistance in a strategic investment- Financial Guarantee of Com.O.S.No.8075/2017 26 Rs.7 crore. Ex.P.37: is the certified copy of statement of account of Kotak Mahindra Bank discloses the payment of Rs.15,00,000/- on 13.07.2015. Ex.P.38 is the ledger account extract pertaining to digital library project maintained by the plaintiff. Ex.P.39 & Ex.P.40 are the computerized invoices dated 14.03.2016 & 09.12.2016. Ex.P.41 is the copy of application dated 27.02.2017 given under RTI Act for issuance of certified copies relating to supply of Digital Content Management Software Systems. Ex.P.42 is the reply dated 14.03.2017 to RTI application to furnish the certified copies of the digital content as sought for. Ex.P.43 is the reply dated 21.02.2017. Ex.P.44 is the entire documents obtain through RTI with page Nos.155 to 446. Ex.P.45 & Ex.P.46 are the Statement of accounts. Ex.P.47 is the certificate U/Sec.65B of Indian Evidence Act.
30. During the course of the cross examination of P.W.1, he has admitted that the plaintiff is registered vendor of defendant No.1 and was suppose to act on behalf of defendant No.1 to execute the contract of the defendant No.2 and 3. He has volunteered they have to execute contract called by the defendant No.1 and to be executed with the Com.O.S.No.8075/2017 27 defendant No.2 and 3. He has admitted that in furtherance of the project, he has met the officials of the defendant No.1. He is aware of the fact that the defendant No.1 is a government company. He do not remember there was a concept of back to back agreement. He is not aware that the defendant No.2 and 3 were supposed to enter into contract with the defendant No.1, which did not materialize. He has denied that there is no contract between the plaintiff's company and defendant No.1. He has admitted that the plaintiff company has not delivered any material to the department of the employment and training i.e., the defendant No.3. He has admitted that the plaintiff has no direct agreement with defendant No.2 and 3, but they have entered into an agreement with the defendant No.1 and the defendant No.1 had placed orders in which the defendant No.2 and 3 were referred. He has stated that they have not collected any information about the relationship of defendant No.2 and 3 with the defendant No.1 prior to the agreement. They have entered into an agreement with the defendant No.1 on the basis of the tender process wherein the tender was awarded to the plaintiff and purchase order was placed.
Com.O.S.No.8075/2017 28 He is not aware of the fact that since there was no agreement with the defendant No.2 and 3 with the defendant No.1 the agreement entered by the defendant No.1 with the plaintiff is not binding on the defendant No.2 and 3. He has stated that the agreement of procurement and supply dated 18.12.2015 was between the plaintiff and defendant No.1. He has denied that though there is no agreement between the defendant No.2 and 3 and defendant No.1 and they have instituted a false suit.
31. Before analyzing the evidence of P.W.1, I would like to refer to the evidence of D.W.1 to D.W.3. D.W.1 is the Deputy Director of the defendant No.3 has stated in his examination in chief that the suit of the plaintiff is speculative and not maintainable. He has further stated that the E- tender dated 01.07.2015 has been published e-procurement KEONICS and not by their department and there is no agreement between the KEONICS and directorate of the employment and training, the department had vide its letter dated 27.03.2015 requested KEONICS to supply the technical specification and configuration as mentioned for the digital library. However, KEONICS had not undertaken any further Com.O.S.No.8075/2017 29 steps to enter into an agreement with the department nor they have supplied the digital library materials within the stipulated 12 weeks as per the terms of the supply order dated 27.03.2015. There is no privity of contract and the agreement entered into by the plaintiff with the 1 st defendant is not enforceable and sought for dismissing the suit and produced seven documents which are at Ex.D.1 to Ex.D.7, which will be discussed in the succeeding paragraphs.
32. During the course of cross examination, he has stated that the defendant No.1 has not supplied the material as per supply order dated 27.03.2015 and supply order deemed to be canceled. He has admitted that there is no action was taken after receipt of the letter dated 25.08.2016 which is at Ex.D.6 by the defendants No.2 and 3. He has stated the defendant No.1 has not responded to the letter dated 16.03.2016 which is at Ex.D.5. The defendant No.1 has not responded the letter dated 18.12.2015 which is at Ex.D.3 in time. He has stated that the defendant No.1 has not replied to the letter dated 27.03.2015 which is at Ex.D.7 stating that they are not agreeable to the terms of Ex.D.7. He has volunteered that the defendant No.1 has not stated Com.O.S.No.8075/2017 30 that they have agreeable for the terms and conditions of Ex.D.7. He has admitted that there was an urgency for their department to complete the project. He was volunteered that since the project not completed with the stipulated time and the financial year, the government has not given consent. They have written to the government seeking approval for the next financial year. He has not instructed the defendant No.1 not entered into agreement with the plaintiff. He has stated that the department is not aware of the fact that the defendant No.1 has collected rupees 15 lakhs as earnest money from the plaintiff. He has denied that he is deposing falsely to disown their liability.
33. D.W.2 is the authorized signatory of the defendant No.1 has stated in his examination in chief that the 1 st defendant is a Government of Karnataka enterprise, a certified organization with an objective to promote electronics industry in Karnataka. The office of the department of employment and training had issued three orders on 27.03.2015. The 1st order was for 6 Government industrial training institutes(ITI), the 2nd order was for 7 ITI and the 3rd order was for 34 ITI. In pursuance of the same, the Com.O.S.No.8075/2017 31 defendant No.1 had raised credit bills on 27.03.2015 against the office of the Commissioner, the Department of employment and training. On 23.06.2015, short cum tender notification was called by KEONICS and the plaintiff participated in the tender and declared as a lowest bidder on 3107.2015. In view of the same, the purchase was issued to the plaintiff and the same was subject to terms and condition. The defendant No.1 has not executed the any agreement dated 18.12.2015 and denies the existence of the agreement. The progress done by the plaintiff with respect to the implementation is not intimated to the 1 st defendant. The 1st defendant has sent the reply denying the execution of the agreement to the plaintiff and as per the decision of the management of the 1st defendant, the show cause notice was also issued to the Basavarajendra, then the technical director through the department of IT-BT and S and T with respect to alleged agreement and the same was also intimated to the plaintiff which is pending and sought for dismissing the case and produced the authorization letter at Ex.D.8.
34. During the course of the cross examination of D.W.2, he has stated that he is deposing on the basis of the Com.O.S.No.8075/2017 32 record. The credit bills dated 27.03.2015 as mentioned in his affidavit have been raised by the defendant No.1 against the defendant No.3 for receiving the funds for the purpose of execution of the project. He has admitted that in the accounts of defendant No.1 even till date the said amount is shown as outstanding amount. Sri.Basavarajendra is still in service and confronted with show cause notice and marked as Ex.P48. He do not know whether the said Basavarajendra had replied to the show cause notice. He do not know whether EMD of Rs.15,00,000/- deposited by the plaintiff with the defendant No.1 has been refunded. He has admitted the copy of the agreement dated 18.12.2015 and volunteered that the agreement was a draft. He was confronted with two copies of the procurement and supply agreement dated 18.12.2015 and marked as Ex.P.49 and 50 subject to objection. He is denied that he is deposing falsely.
35. D.W.3 Sri. Basavarajendra is summoned witness and filed his affidavit by stating that he was a director of the defendant No.1 and the defendant No.1 had issued a show cause notice to him and same was replied on 21.10.2017 and had no personal interest in the matter.
Com.O.S.No.8075/2017 33
36. During the course of his cross examination of D.W.3, he has stated that he has the copy of the reply given to the show cause notice and the same was produced and marked as Ex.D.9. He do not remember procurement and supply agreement referred in EX.P.48. He cannot identify signature and the xerox copy of the agreement dated 18.12.2015. He has denied that he has signed the agreement dated 18.12.2015 and the basis of the decision taken by the board of the defendant No.1. He has volunteered he had approved the said document for signature. He has admitted that his parent department is the Government and was deputed to the defendant No.1. He has stated that as per his knowledge there was no contract between the plaintiff and defendant No.1 during his tenure.
37. On conjoint reading of the oral and the documentary evidence, it is clear from Ex.D.7 that the defendant No.3 had issued official letter dated 27.03.2015 to the defendant No.1 for the supply of the digital library materials and the installation in seven government ITI with a specification pertaining to the configuration for desktop and such other requirements as mentioned therein. It is also clear from Com.O.S.No.8075/2017 34 Ex.D.2 letter dated 16.04.2015 addressed by the 1 st defendant to the defendant No.3 that the defendant no.1 has requested the defendant No.3 to release the advance amount as per the proposal to supply digital library material and the installation. It is also clear from the letter dated 18.06.2015 which is the part and parcel of Ex.P.44 obtained through RTI and the said letter dated 18.06.2015 is addressed by the defendant No.1 to the defendant No.3 and the relevant portion is extracted hereunder:
"With reference to the above, we would like to inform you that we are in the process of taking procurement action for supply of digital library materials as per the work order issued from your department. In this connection we require the confirmation for the following:
1. List of books
2. List of journals
3. List of reference content The copy of the above lists is enclosed here with for your kind reference, we request you to confirm on the same to enable us to process further".
38. On bare reading of the aforesaid letter, it is clear that the 1st defendant has initiated the process of taking procurement for the supply of digital library materials as per the work order issued by the defendant No.3. It is also clear Com.O.S.No.8075/2017 35 from the tender document i.e., request for proposal document for design, supply and installation, commissioning and maintenance of digital content software, which is part and parcel of the Ex.P.44 that the defendant No.1 had initiated the process for inviting two bids system in respect of digital library. It is also clear from the tender document as well as the proceedings dated 31.07.2015 held before the 1st defendant that the plaintiff was declare as a successful bidder for awarding the tender. Thus, it clearly substantiate from the aforesaid correspondences, proposal tender document and the proceedings before the 1 st defendant that the defendant No.1 had invited e-procurement for digital library as per the instruction and the work order issued by the defendant No.3 and in which the plaintiff was a successful bidder.
39. In this context, I would like to refer to the contention of the defendant No.2 and 3 that there is no privity of contract between the plaintiff and defendant no. 2 and 3 and the suit against them is not maintainable. This Court has already observed on going through letter correspondences, tender and proceedings that the defendant No.1 has invited Com.O.S.No.8075/2017 36 the tender on behalf of defendant No.2 and 3 in which the plaintiff was a successful bidder. This indicates that there is an assignment of rights from the defendant No. 2 and 3 in favour of defendant No.1 in inviting the tender for digital library in which plaintiff was a successful bidder and as such, the defendant No.2 and 3 are not stranger to the tender called for. They are proper and necessary parties to the suit. Therefore, the version of PW.1 that the plaintiff has no direct agreement with defendant No.2 and 3, but they have entered into an agreement with the defendant No.1 and the defendant No.1 had placed orders in which the defendant No.2 and 3 were referred is supported by the documentary evidence and acceptable. In such circumstance, the version of D.W.1 and contention of the defendant No.2 and 3 that there is no privity of contract between the plaintiff and the defendant No.2 and 3 is unsustainable in the eye of law.
40. Now in regard to question of issuance of purchase order dated 31.07.2015 at Ex.P.3 by the defendant No.1 and the execution of the agreement dated 18.12.2015 at Ex.P49. According to the plaintiff, the defendant No.1 had placed purchase order and in pursuance of the purchase order, the Com.O.S.No.8075/2017 37 defendant No.1 and the plaintiff had entered into an agreement dated 18.12.2015 and thereafter, the plaintiff had invested huge amount of money to purchase the material for the tender project. In this regard, I would once again like to refer to the proceedings of the 1 st defendant and the relevant portion of the proceedings dated 19.12.2015 and 25/8 is extracted hereunder:
19.12.2015.
We have received order from department of employment and training for design, development, supply, commissioning and maintenance of digital library. We have already released purchase order on M/s Invectra Infor Solutions Pvt. Ltd after tendering on e-procurement. Now we have received a draft agreement from the director. Department of employment and training, Govt of Karnataka we have to enter the agreement with the department as per the draft sent by the them and also back to back agreement with the vendor.
Approval of management is requested for the following
1. To sign the agreement with department of employment and training, govt of karnataka as per the sent by DET which is placed in the file.
2. To sign back to back agreement with M/s Innvectra Info Solutions Pvt.Ltd as per the draft placed in the file.
Com.O.S.No.8075/2017 38 Submitted for approval of management and signing of agreements.
Manager ITS The copy of agreement sent by DET and back to back with M/s Innvectra Info Solutions I plaint in the file for kind perusal and signature of management.
30 to 32----
We have sent the agreement to DET for signing, but we have not received the signed agreement as on today, hence were prepared a letter to DET for signing the agreement and requested to release the advance amount for implementing the digital library project.
In view of the above management approval is requested to sign the letter placed in the file.
AM-ITS kind signature of management is requested for the letter placed in the file.
Manager-ITS-on leave please Director--
41. On bare reading of the aforesaid content, it is clear that the 1st defendant had already issued the purchase order to the plaintiff and received the draft agreement from the department of Employment and Training i.e., the defendant No.3 herein to enter into the agreement as per the draft and also back to back agreement with the vendor i.e., the plaintiff Com.O.S.No.8075/2017 39 herein and requested the management to approve the draft agreement for signing of the agreement with the defendant No.3 as well as to sign back to back agreement with the plaintiff. It is also clear from the subsequent proceedings of the defendant No.1 that the agreement sent for signing was not signed and once again requested to sign the agreement. D.W.3 in his reply at Ex.D9 to the show cause notice has stated that agreement between plaintiff and defendant No.1 was put up for approval and Director of Technical had signed the agreement but the reply to effect that the Director of Technical has approved to the agreement is contrary to the recording in the proceedings as mentioned above. It is pertinent to note that Ex.D.9-reply of D.W.3 had referred to chorological events from the date of issues of purchase, draft agreement dated 18.12.2015 and Assistant Manager of Keonics placing the draft agreement for signing before the Director of Technical on 19.12.2015 and on the very day, the Director of Technical had approved the agreement and his transfer. If all, the draft agreement was approved as stated in Ex.D.9 then the version of D.W.3 that as per his knowledge there was no contract between the plaintiff and defendant Com.O.S.No.8075/2017 40 no.1 during his tenure is contrary to his own reply. The version of D.W.3 is inconsistent and contradictory to his own reply and proceedings of the defendant no.1 as mentioned. In such circumstance, the reply at Ex.D9 to the extent that the DET had signed the agreement is not acceptable. Thus, it is clear that the defendant No.1 substantiate that the proceedings of 1st defendant at Ex.P44 indicates that the draft agreement was prepared on 18.12.2015 between the plaintiff and the defendant No.1 as produced at Ex.P.49, but the same was yet to be approved by the management. Therefore, the contention of the defendant No.1 that the agreement dated 18.12.2015 is only a draft agreement sent for approval is acceptable.
42. Now I would like to go back to purchase order dated 31.07.2015 and relevant portion is extracted hereunder:
"This is purchase order shall be governed by our terms and conditions printed overleaf, Tender conditions and Departmental agreement on back to back basis."
"Terms of Payment"
100% payment against delivery, Installation, Certification and receipt of Payment from Dept of Employment and Training, GOK"
Com.O.S.No.8075/2017 41
43. It is clear from reading of the aforesaid content that the purchase order refers to Department agreement on back to back basis and payment terms subject to delivery. P.W.1 had admitted that there is no delivery made to the defendants. It is also clear from the proposal of the tender document at Annexure-5 that the successful bidder shall execute back to back agreement with KEONICS. Though P.W.1 do not remember about the concept of back to back agreement but the fact remains that the tender proposal as well as purchase order at Ex.P.3 refers to back to back agreement as condition precedent, which was never approved and signed by the DET and the same is also reflected in the proceeding as mentioned above. In such circumstance, the contention of the defendant No.1 that the agreement dated 18.12.2015 is only a draft agreement sent for approval and there was no back to back agreement as contemplated in the tender and purchase order is acceptable.
44. Now the question that arises for my consideration whether the plaintiff had made investment as per the purchase order as pleaded in the plaint. In this context, I would like to refer to Ex.P35 to 40. Ex.P.35 is the agreement Com.O.S.No.8075/2017 42 dated 11.12.2015 between the plaintiff and K3 Technologies Private Limited, wherein it discloses that K3 Technologies Private Limited had agreed to assist and consult on behalf of the Plaintiff in the subject matter of the project and the clause 2 of the deed refers to as hereunder:
2. The payment shall be made by the first party to the 2nd party in the following stages
a) The first party agreed to complete the payment of 50% of the 40% agreed amount on the date of signing of the execution agreement between the 1st party and M/s KEONICS which may happen between 8th to 12th December 2015 and the 2nd party agreed for the same.
45. It is relevant to note that the aforesaid agreement was executed on 11th December 2015 but refers to the signing of the agreement between the 1 st party i.e., the plaintiff and the KEONCS happening between 8 th to 12th of the December 2015. If at all, the agreement was executed on 11th of December 2015 as shown, there is no possibility the agreement referring to the prior date i.e., 8 th to 11th excluding 12 December. Therefore, the genuineness of the Ex.P.35 is doubtful and cannot be relied upon.
Com.O.S.No.8075/2017 43
46. Ex.P.36 is the agreement dated 19.09.2015 executed between M/s.Multi Management Solutions and the Plaintiff for seeking assistance in a strategic investment- Financial Guarantee of Rs.7 crore. The said agreement pertains to the financial investment of the plaintiff and has no bearing to the present case to show that there an investment to tender project and cannot be relied upon.
47. Ex.P37 is the statement of account of plaintiff maintained in Kotak Mahindra Bank from 01.04.2015 to 31.03.2017. The entries on 13.07.2015 shows the amount of Rs.15,00,000/- was paid to E-procurement and the same is acceptable. In regard to other entries, I would like to refer to Ex.P38 to P.40.
48. Ex.P38 is Trial Balance showing particulars as hereunder:
Particulars Innvectra Info Solutions
1-Apr-2015 to 3-Jan-2017
Closing Balance
Debit Credit
Fixed Assets 3623807.00
_____________
Emd Payment 1500000.00
Furniture 1201414.00
Com.O.S.No.8075/2017
44
Serves 922393.00
CurrentAssets 18698176.00
____________________________
Cash-in-hand
Bank Accounts 18698176.00
Indirect Expenses 15074369.00
____________________________
Consultancy Fees 9000000.00
Rent 2189839.00
Salaries 3530481.00
Traveling 354049.00
__________________________________________________________ Grand Total 18698176.00 18698176.00 ___________________________________________________________
49. Trial Balance is also enclosed with payment details towards EMD, Furniture, servers, bank account book, consultancy fees, rent, salaries and travelling.
50. Ex.P39 is tax invoices dated 14.03.2016 for purchasing servers worth Rs.9,22,393/- and mode of payment is "90% advance 10% against installation" and terms of delivery as "Door delivery Ravindra". P.W.1 had admitted that the plaintiff company has not delivered any material to the department of employment and training i.e., defendant No.3. That apart, the details of payment of Rs.9,22,393/- is reflected in list of the server which is part of Ex.P.38 is under three heads i.e., on 09.12.2015, 11.03.2016 and 11.08.2016 Com.O.S.No.8075/2017 45 for Rs.4,59,011/-, Rs.3,67,209/- and Rs.96,173, in all Rs.9,22,393/- and also referred to three different voucher numbers as 16, 23 and 11. It is pertinent to note that the tax invoice dated 14.03.2016 at Ex.P.39 refers to the mode of payment as "90% advance 10% against installation" towards the purchase order dated 07.12.2015 but on the date of purchase order there is no payment and on date of raising invoice, the plaintiff shows two payment on 09.12.2015 and 11.03.2016 for Rs.4,59,011/- and Rs.3,67,209/- respectively, in all Rs.8,26,220/- and door delivery to Ravindra. It shows that item referred in tax invoice is already delivered to Ravindra. Even assuming for the sake of the argument that the said Ravindra as shown in tax invoice is the authorized representative of the plaintiff but P.W.1 had admitted that he met the official of the defendant No.1 and there is no delivery of items to the defendant No.1. That apart, the tax invoice is raised after 3 months from the date of purchase order and the same is evident from the invoice itself. It is pertinent to that terms and conditions of the purchase order dated 31.07.2015 indicates that the dispatch to defendant no.1, which is not shown in the tax invoices. Apart from that, there Com.O.S.No.8075/2017 46 is no document that the material purchased is still retained with plaintiff and incurred loss except for oral testimony of P.W.1. In such circumstance, mere payment will not give raise that the tax invoice at Ex.P39 is based on purchase order of the defendant No.1. Therefore, the genuineness of Ex.P.39 is in doubtful and cannot be accepted.
51. Ex.P.40 invoice dated 9.12.2015 discloses towards the purchase of computer tables and the installation of tables amounting to Rs.6,13,428/-. The details of payment are reflected in the list of furniture which is part and parcel of Ex.P.38 shows the payment by way of cash on 08.12.2015. Infact, the invoice at Ex.P.40 discloses the "terms of payment as discussed" and terms of delivery as "Delivery at multiple locations soon after quality checks. Details of the delivery location to be supplied Innvectra soon after the quality checks". There is no reference that the payment is made by way of cash in the invoice. That apart, Ex.P4 refer to letter dated 02.02.2016 addressed by Panorama Solutins Pvt. Ltd to one Sharath Jetty in regard to delivery of 470 sets of tables for ITI colleges with refer order "in the month of September 2015" but invoice at Ex.P40 refer to date as" 9/12/2015", Com.O.S.No.8075/2017 47 which is contradict to one another. In such circumstance, the genuineness of Ex.P.40 is doubtful and cannot be accepted.
52. Now in regard to the other details shown in Ex.P.38 pertaining to the investment such as salaries, rent etc., is concerned, there is no supporting document to show that the plaintiff has incurred the expenses towards the same. The best available evidence to prove the expenditure is the income tax returns and the same is not produced by the plaintiff. In such circumstance, the contention of the plaintiff that the plaintiff has invested the huge amount of Rs.1,86,98,176/- towards the tender contract is not acceptable except the EMD amount of Rs.15,00,000/-. Thus, the plaintiff substantiate its claim only to an extent of the amount of Rs.15,00,000/-.
53. Now the question that arises for my consideration whether the plaintiff is entitled for the amount of Rs.15,00,000/-. In this regard I would like to refer to the internal correspondence between the defendant No.3 with the defendant No.1 at Ex.D.3 to Ex.D.5. Ex.D.3 is the letter dated 18.12.2015 addressed by the DET to the Manager of KEONICS and the relevant portion is extracted hereunder:
Com.O.S.No.8075/2017 48 ಮೇಲ್ಕಂಡ ವಿಷಂಟುಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ಮಾನ್ಯ ಮುಖ್ಯ ಮಂತ್ರಿಯವರ ಅಯವ್ಯಯ ಭಾಷಣ 2014-15 ರಲ್ಲಿ ಘೋಷಿಸಿರುವಂತೆ ರಾಜ್ಯದ 158 ಸ.ಕೈ.ಶ.ಸಂ.ಗಳಲ್ಲಿ ತರಬೇತಿಗೆ ಅವಶ್ಯಕವಾದ ಹೊಸ ಮಾಹಿತಿಗಳನ್ನು ತಿಳಿದುಕೊಳ್ಳಲು ಪ್ರತಿ ಸ.ಕೃ.ತ.ಸಂ.ಗಳಲ್ಲಿ ಒಂದು ಡಿಜಿಟಲ್ ಲೈಬ್ರರಿಯನ್ನು ತೆರೆಯಲು ಘೋಷಿಸಲಾಗಿತ್ತು. ಅದರಂತೆ ಉಲ್ಲೇಖಿತ ಪತ್ರದಲ್ಲಿ ಡಿಜಿಟಲ್ ಲೈಬ್ರರಿಯನ್ನು ಅನುಷ್ಠಾನಗೊಳಿಸಲು ಸರಬರಾಜು ಆದೇಶ ಹೊರಡಿಸಲಾಗಿತ್ತು. ಈ ಸಂಬಂಧ ತಮ್ಮಿಂದ ಯಾವುದೇ ಉತ್ತರ ಬಂದಿರುವುದಿಲ್ಲ. ಈ ಕಾರ್ಯವು ತುರ್ತಾಗಿ ಆಗಬೇಕಾಗಿರುವುದರಿಂದ ಇಲಾಖೆಯಿಂದಲೇ ಕಾರು ಕರಡು ಒಪ್ಪಂದವನ್ನು ಸಿದ್ದಪಡಿಸಿ ಈ ಪತ್ರದೊಂದಿಗೆ ಲಗತ್ತಿಸಿ ಕಳುಹಿಸಲಾಗಿದ್ದು, ಏನಾದರೂ ಮಾರ್ಪಾಟು ಇದ್ದಲ್ಲಿ ಕರಾರು ಒಪ್ಪಂದವನ್ನು ಪರಿಷ್ಕರಣೆ ಮಾಡಿ ಕಳುಹಿಸುವಂತೆ ಕೋರಲಾಗಿದೆ.
ಮುಂದುವರೆದು, ಮಾನ್ಯ ಕಾರ್ಮಿಕ ಸಚಿವರ ಟಿಪ್ಪಣಿ ದಿ.21-10-2015 ರಲ್ಲಿ ಇದುವರೆಗೂ ಲೈಬ್ರರಿಯನ್ನು ಅನುಷ್ಠಾನವಾಗಿರುವುದಿಲ್ಲವಾದ್ದರಿಂದ 2015-16 ನೇ ಸಾಲಿನಲ್ಲಿ ಸ.ಕೈ.ತ.ಸಂ. ಗಳಲ್ಲಿ ತುರ್ತಾಗಿ ಡಿಜಿಟಲ್ ಲೈಬ್ರರಿಯನ್ನು ಅನುಷ್ಟಾಗೊಳಿಸಲು ಆದೇಶಿಸಿರುವ ಹಿನ್ನಲೆಯಲ್ಲಿ ಈಗಾಗಲೇ ಸಾಕಷ್ಟು ವಿಳಂಬವಾಗಿರುವುದರಿಂದ ಮುಂದಿನ ಕ್ರಮ ಕೈಗೊಳ್ಳಲು ಮರು ಟಪಾಲಿನಲ್ಲಿ ಕರಾರಿನ ಕರಡನ್ನು ಪರಿಶೀಲಿಸಿ ಹಿಂದಿರುಗಿಸಲು ಈ ಮೂಲಕ ಕೋರಲಾಗಿದೆ.
54. On bare reading of the aforesaid letter, it is clear that the Hon'ble Chief Minister in its speech has expressed the necessity of digital library and also made announcement to implement the project but there was no response from the defendant No.1 herein. The said programme is required to be carried out immediately and the department has forwarded the draft agreement along with this letter and if there is any modification to carry out the necessary changes and forward Com.O.S.No.8075/2017 49 the same. There has been a considerable delay in implementing the project. Further, on 21.10.2015 the Hon'ble Labour Minister has noted that there has been delay in implementing project for the year 2015- 2016 and directed to take necessary further action in reconsider the draft agreement.
55. Ex.D.4 is the letter dated 11.03.2016 addressed by the DET to the Managing Director of KEONICS and the relevant portion is extracted hereunder:
ಮೇಲಿನ ವಿಷಯಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ ಉಲ್ಲೇಖಿತ (1)ರಲ್ಲಿ ನೀಡಿದ ಪ್ರೊಫಾರ್ಮ್ ಇನ್ವಾಯ್ನಂತೆ ಉಲ್ಲೇಖ (2)ರಲ್ಲಿ 47 ಸ.ಕೈ.ತ.ಸಂ.ಗಳಿಗೆ ಡಿಜಿಟಲ್ ಲೈಬ್ರರಿಯನ್ನು ಸರಬರಾಜು ಮಾಡಲು ಸರಬರಾಜು ಆದೇಶ ನೀಡಲಾಗಿರುತ್ತದೆ. ಆದರೆ ಉಲ್ಲೇಖ (3)ರಲ್ಲಿ 37 ಹಿಂದುಳಿದ ತಾಲೂಕುಗಳಲ್ಲಿನ ಸ.ಕೈ.ತ.ಸಂ.ಗಳಿಗೆ ಮಾತ್ರ ಡಿಜಿಟಲ್ ಲೈಬ್ರರಿಯನ್ನು 2015-16 ನೇ ಸಾಲಿನಲ್ಲಿ ಖರೀದಿಸಿ ಒದಗಿಸಲು ಡಿಜಿಟಲ್ ಲೈಬ್ರರಿಯನ್ನು ಯೋಜನಾ ಇಲಾಖೆಯಿಂದ ಅನುಮೋದನೆಯಾಗಿರುತ್ತದೆ. ಉಲ್ಲೇಖ (4)ರಲ್ಲಿ ಈ 47 ಸ.ತ.ಸಂಗಳಿಗೆ ಖರೀದಿಸಿ ಅಳವಡಿಸುವ ಸಂಬಂಧ ಹೆಚ್ಚುವರಿ ಅನುದಾನ ಬಿಡುಗಡೆ ಹಾಗೂ ಆಡಳಿತಾತ್ಮಕ ಮಂಜೂರಾತಿ ನೀಡುವಂತೆ ಕೋರಿ ಪ್ರಸ್ತಾವನೆ ಸಲ್ಲಿಸಲಾಗಿರುತ್ತದೆ.
ಸರ್ಕಾರಿ ಆದೇಶದಂತೆ ಉಲ್ಲೇಖ (1 ರ ದರಗಳಂತೆ 37 ಹಿಂದುಳಿದ ತಾಲೂಕುಗಳಲ್ಲಿನ ಸ.ತ.ಸಂ.ಗಳಿಗೆ ಡಿಜಿಟಲ್ ಲೈಬ್ರರಿಯನ್ನು ಖರೀದಿಸಿ ಒದಗಿಸಲು ಸರ್ಕಾರದಿಂದ ಉಲ್ಲೇಖ (5)ರಲ್ಲಿ ಅನುಮೋದನೆಯಾಗಿ ಬಂದಿರುತ್ತದೆ. ಸರ್ಕಾರಿ ಆದೇಶದಂತೆ 37 ಹಿಂದುಳಿದ ತಾಲೂಕುಗಳಲ್ಲಿನ ಸ..ತ.ಸ೦.ಗಳಿಗೆ ಸರಬರಾಜು ಆದೇಶವನ್ನು ಹೊರಡಿಸುವ ಮುನ್ನ ಖರೀದಿ ಅನುಸೂಚಿಯನ್ನು ಪರಿಶೀಲಿಸಲಾಗಿ ಕ್ರಮ ಸಂಖ್ಯೆ 7 ರಲ್ಲಿ Digital course content in english and kannada which included reference books e-journal(10 Nos) and teaching Com.O.S.No.8075/2017 50 slides (150 Nos) including Digital library meangement system with perpetual licence) ಗಳಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ಪ್ರತಿ ವಿಷಯದ ಪುಸ್ತಕಗಳಿಗೆ, ಇ-ಜರ್ನಲ್ ಗಳಿಗೆ ಹಾಗೂ ಸೆ್ಲೃಡ್ಗಳ ಪ್ರತಿಯೆಂದರ ಲೈಸನ್ಸ್ಗಾಗಿ ಪ್ರತ್ಯೇಕ ದರಪಟ್ಟಿ ನೀಡಲು ತಿಳಿಸಲಾಗಿದೆ.
56. On reading of the content of Ex.D3, it is clear that there was order to supply of digital library materials and installation for 47 ITI colleges as per the order dated 27.03.2015 but the reference No.3 refers to the department having approved for the supply of digital library for the year 2015-16 for 37 backward taluks and required additional grant for the digital library of 47 ITI and the supply of materials.
57. Ex.D.5 is the letter dated 16.03.2016 addressed by the DET to the Managing Director of KEONICS and the relevant portion is extracted hereunder:
ಮೇಲಿನ ವಿಷಯಕ್ಕೆ ಸಂಬಂಧಿಸಿದಂತೆ, ಸರ್ಕಾರಿ ಆದೇಶದಂತೆ ಉಲ್ಲೇಖ (5)ರ ಸರ್ಕಾರಿ ಆದೇಶದಂತೆ ತಾಲೂಕುಗಳಲ್ಲಿನ ಸ.ಕೈ.ತ.ಸಂ.ಗಳಿಗೆ ಸರಬರಾಜು ಆದೇಶವನ್ನು ಹೊರಡಿಸುವ ಮುನ್ನ ಖರೀದಿ ಅನುಸೂಚಿಯಲ್ಲಿ ತಿಳಿಸಿದಂತೆ 70 Digital Course Content in English and Kannada which included referral Books (100 Nos), e-journals (10 Nos) and Teaching Slides (150 Nos) including Digital Library Management System with Perpetual Licence) ಗಳಿಗೆ ಸಂಬಂಧಿಸಿದಂತೆ ಪ್ರತಿ ವಿಷಯದ ಪುಸ್ತಕಗಳಿಗೆ, ಇ-ಜರ್ನಲ್ಗಳಿಗೆ ಹಾಗೂ ಸೈಡ್ಸ್ಗಳ ಪ್ರತಿಯೊಂದರ ಲೈಸನ್ಸ್ಗಾಗಿ ಪ್ರತ್ಯೇಕ ದರಪಟ್ಟಿ ನೀಡಲು ಉಲ್ಲೇಖ (6)ರಲ್ಲಿ ತಿಳಿಸಲಾಗಿತ್ತು. ಆದರೆ ಇದುವರೆಗೂ ಸಲ್ಲಿಸದೆ ಇರುವುದರಿಂದ ಆರ್ಥಿಕ ವರ್ಷ Com.O.S.No.8075/2017 51 ಮುಕ್ತಾಯಗೊಳ್ಳುತ್ತಲಿದ್ದು, ತುರ್ತಾಗಿ ಮೇಲ್ಕಂಡಂತೆ ಅಗತ್ಯವಿರುವ ಮಾಹಿತಿಗಳನ್ನು ಹಾಗೂ ವಿಸ್ಕೃತ ಯೋಜನಾ ವರದಿ (DPR) ನೀಡಲು ತಿಳಿಸಲಾಗಿದೆ.
58. On reading of the aforesaid content, it is clear that the department has ordered to purchase the material prior to supplying in respect of books e-journals teaching slides including digital library management.
59. On conjoint reading of Ex.D.3 to Ex.D.5 and the proceedings of the defendant No.1, it is clear that on 18.12.215, the Department of Technical has blamed the defendant No.1 KEONICS for the delay in implementing the digital material for the year 2015-16 and directed to reconsidered the draft agreement but the proceedings of the defendant No.1 on 19.12.2015 indicates that DET has not approved the draft agreement. That apart, the version of D.W.2 that the 1st defendant had requested the DET to provide the list of 47 ITI for implementing the project but defendant No.3 did not provide the list and the exact list was not finalized further indicates that the defendant No.2 and 3 are also responsible in non implementing the project. Therefore, this court is of the opinion the act and the conduct of the defendants interse are solely responsible for the failure Com.O.S.No.8075/2017 52 to implement the project. Hence, the defendant No.1 have received the EMD of Rs.15,00,000-/ from the plaintiff is liable to refund the same. Thus, the plaintiff substantiate that it is entitle for Rs.15,00,000/- from the defendant No.1.
60. Now in regard to claim of Rs.10,00,000/- towards loss and goodwill is concerned, the notice/letter correspondence of plaintiff with defendant no.1 at Ex.P6 and 7 discloses the plaintiff expressing enormous delay in getting the required information from KEONICS to start the implementation of Digital Library Project and placed its request. It is prima facie substantiate that the plaintiff was always and willing to perform its obligation in the purchaser order. No doubt, this court has already observed that there is no back to back agreement as mentioned in the tender and purchase order but the fact remains that the plaintiff was always and willing to perform its obligation and waited over more than year for implementing the project and non- implementation of project will have repercussion on the business of the plaintiff and that would definitely cause monetary loss, hardship and inconvenience and as such the defendants are liable to compensate the plaintiff. Therefore, Com.O.S.No.8075/2017 53 keeping the aforesaid aspects, it is just and necessary to award the compensation of Rs.5,00,000/- to the plaintiff towards inconvenience and loss suffered by it.
61. In regard to interest at 12 on suit claim is concerned, admittedly there is no contractual obligation to pay the interest on EMD. However, defendant No.1 having withheld the legitimate amount of Rs.15,00,000/- till today, it is just and necessary to award the interest at 12% p.a. on Rs.15,00,000/-. Hence, this court is of the opinion that the defendant No.1 alone is liable to pay Rs.15,00,000/- along with interest at 12% from 01.08.2015 till the date of realization. Accordingly, I answer issue No.1 'Partly in the Affirmative' issue No.2 and Addl.issue No.1 in the 'Negative'.
62. Issue No.3:- In view of the findings on the aforesaid issue, the plaintiff is entitled for Rs.5,00,000/- towards inconvenience and hardship along with the amount of Rs.15,00,000/- paid towards the EMD to the defendant No.1 along with interest at 12% on Rs.15,00,000/- from 01.08.2015 till the date of realization. Accordingly, I answer issue No.3 'Partly in the affirmative'.
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63. Issue No.4:- In view of the findings on aforesaid issues, I proceed to pass the following;
ORDER The suit of the plaintiff is hereby partly decreed with costs.
It is hereby ordered and decreed that the defendant No.1 is liable to pay Rs.15,00,000/- along with interest at the rate of 12% p.a from 01.08.2015 till the date of realization.
It is hereby ordered and decreed that the defendants are jointly and severally liable to pay to the plaintiff a sum of Rs.5,00,000/- towards compensation within one month from the date of this order.
In default of payment of the amount of Rs.5,00,000/- within one month, the defendants are liable to pay interest at 6% P.A on Rs,5,00,000/- from 23.02.2023 till realization.
Draw decree accordingly.
The office is hereby directed to send copy of this order to the parties to the proceedings to their respective email ID as Com.O.S.No.8075/2017 55 required under order 20 rule 1 of CPC and as amended under section 16 of the Commercial Courts Act, 2015.
[Partly dictated to the stenographer, online transcribed & computerized by her, corrected on computer and signed by me then pronounced in the Open Court, dated this the 23rd day of January, 2023] (N.V.BHAVANI) LXXXVI Addl. City Civil Judge Bangalore.
Com.O.S.No.8075/2017 56 ANNEXURE List of witnesses examined on behalf of the plaintiff/s:
P.W.1 : M.V.Ravindra Babu List of documents marked on behalf of the plaintiff/s:
Ex.P.1 : Certified copy of the resolution dated 09.11.2017 Ex.P.2 : Copy of e-procurement Ex.P.3 : Purchase order dated 31.07.2015 Ex.P.4 : Computerized copy of notice dated 02.02.2016 Ex.P.5 : copy of email dated 20.10.2015 & 21.10.2015 Ex.P.6 : Copy of the letter dated 11.07.2016 Ex.P.7 : Copy of email dated 15.07.2016 & 13.09.2016 Ex.P.8 : Office copy of notice dated 06.10.2016 Ex.P.9 to Ex.P.11: Three postal receipts Ex.P.12 to Ex.P.14: Postal acknowledgment Ex.P.15: Office copy of notice dated 08.12.2016 Ex.P.16 to Ex.P.18: Postal receipts Ex.P.19 to Ex.P.21: Postal acknowledgment Ex.P.22: Reply dated 09.01.2016 Ex.P.23: Postal cover Ex.P.24: Office copy of the notice dated 09.02.2017 Ex.P.25 to Ex.P.28: Postal receipts Ex.P.29 to Ex.P.32: Postal acknowledgment Com.O.S.No.8075/2017 57 Ex.P.33: Reply dated 15.03.2017 Ex.P.34: Postal cover Ex.P.35: Original agreement dated 11.12.2015 Ex.P.36: Agreement dated 19.09.2015 Ex.P.37: Certified copy of statement of account of Kotak Mahindra Bank Ex.P.38: Ledger account extract pertaining to digital library project.
Ex.P.39 & Ex.P.40: Computerized invoices dated 14.03.2016 & 09.12.2016 Ex.P.41: Copy of application dated 27.02.2017 given under RTI Act, Ex.P.42: Reply dated 14.03.2017 Ex.P.43: Reply dated 21.02.2017 Ex.P.44: Entire documents obtain through RTI with page Nos.155 to 446.
Ex.P.45 & Ex.P.46: Statement of accounts Ex.P.47: Certificate U/Sec.65B of Indian Evidence Act. Ex.P.48: Show Cause Notice dated 06.03.2017 Ex.P.49 & Ex.P.50: Two copies of procurement and supply agreement List of witnesses examined on behalf of the defendant/s:
D.W.1 : Hanumathraju
D.W.2 : Shivananda.K.S
D.W.3 : H.Basavarajendra
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List of documents marked on behalf of the defendant/s :
Ex.D.1 : Authorization letter dated 09.07.2018 Ex.D.2 : Letter dated 16.04.2015 Ex.D.3 : Letter dated 18.12.2015 Ex.D.4 : Letter dated 11.03.2016 Ex.D.5 : Letter dated 16.03.2016 Ex.D.6 : Letter dated 25.08.2016 Ex.D.7 : Letter dated 27.03.2015 Ex.D.8 : Authorization letter dated 05.08.2021 Ex.D.9 : Reply to Show cause Notice on 21.10.2017 LXXXVI Addl. City Civil Judge Bangalore.