Bangalore District Court
Company For Supply Of Man Power For ... vs Are Less Than 20 Employees And It Is Not ... on 27 January, 2023
54
Com.O.S.No.309/2019
IN THE COURT OF LXXXII ADDL.CITY CIVIL & SESSIONS
JUDGE, AT BENGALURU (CCH.83)
THIS THE 27th DAY OF JANUARY 2023.
PRESENT:
SUMANGALA S BASAVANNOUR., B.COM, LL.M.,
LXXXII ADDL.CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Com. O.S. No.309/2019
BETWEEN:
M/s Balaji Enterprises,
No. 7, 80 ft. Road,
Chandra Layout,
(Adgacent to Chandra
Bank) Bengaluru-
560040. Rep. By its
Proprietor Sri.
V.Venkateshaiah
: PLAINTIFF
(Represented by Sri.
Rama Chandra. H -
Advocate)
AND
1. The Director
Institute of Wood
Science and
Technology (Indian
54
Com.O.S.No.309/2019
Council of Forestry
Research and
Education) (An
Autonomous Council of
Ministry of
Environment and
Forest Govt. Of India)
PO Malleswaram,
Bengaluru-560003.
2. Sri. Surendra Kumar
IFS S/o. Late.
Harkhaoo Mahto Aged
about 58 years
Principal Chief
conservator of Forest
(Wild Life) and Chief
Forest Head Quarters
Vazhuthacud,
Thiruvanthapuram,
Kerala-695014.
: DEFENDANT
(Represented by Sri.
NCA - Advocate)
Date of Institution of the 18.10.2019
suit
Nature of the suit (suit on
pronote, suit for Suit for recovery of money
declaration & Possession,
Suit for injunction etc.)
54
Com.O.S.No.309/2019
Date of commencement of
recording of evidence 24.06.2022
Date on which judgment
27.01.2023
was pronounced
Total Duration Year/s Month/s Day/s
03 03 09
(SUMANGALA S BASAVANNOUR),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This suit is filed by the Plaintiff for recovery of a sum of Rs.23,66,220/- with interest at the rate of 18% per annum liable to pay by the defendant jointly and severally from the date of filing of the suit till the date of realization.
2. The Brief facts of the Plaint are as follows:-
The Plaintiff was Sub-Inspector/ ExE in Central Industrial Security Force (Ministry of Home Affairs Government of India, and he rendered his unblemished service of 39 years 6 months and 28 days and served in various places in the country and during his last tenure of service he was posted in Bengaluru since he hails from Karnataka and he retired from service on 54 Com.O.S.No.309/2019 31.05.2009. After retirement from service in order to educate his children, who were studying in colleges and to support the family needs, he invested his pensionary benefits and started the business of private Security Agency and obtained the necessary license from the Police Department on 12.10.2012 for a period of 11.10.2014. He also registered the firm under the name and style M/s. Balaji Enterprises and obtained registration certificate from the Labour Department, Karnataka Government bearing registration No.33/ 132/CE/ 0197/ 2009 dated 31.12.2013 along with registering his firm name in the Employees State Insurance Corporation bearing No. KAR/ INSPN/ 53-26955- 101 dated 09.06.2009 and Employees Provident Fund Organization bearing No.KN/ PF/ SAO/ PNY/ CIRCUMSTANCES-III/ 30053/ 683/2009-2010 dated 30.07.2009.
During the year 2014, he noticed a paper publication of 1 st defendant seeking the contractor to supply the security guards and housekeeping servants for their central Government Organization situated at 18th Cross, Malleshwaram, Bengaluru- 560 003. The plaintiff company also submitted its tender and could able to get the contract, since its quotation submitted to the 1st defendant organization was lowest. In view of the acceptance of the plaintiff's company quotation, the 1 st defendant organization has entered into two unregistered contract in the E.Stamp which was purchased by the plaintiff 54 Com.O.S.No.309/2019 company's proprietor Sri. Venkateshaiah and V.Ramakanth, Director IWST, Malleshwaram dated 03.06.2014. It is pertinent to note that on acceptance of the plaintiff's quotation for supply of man power to the 1 st defendant's organization issued work order to the plaintiff company on 26.05.2014, for supply of man power of 1 driver, 2 Gardner and two sweepers. However on the advice of the 1st defendant's organization two agreements have been entered between the plaintiffs company and the 1 st defendant's organization the 1 st agreement in respect of supply of security guards and the 2 nd agreements in respect of supply of housekeeping labourers. The plaintiff is restricted its claim in respect of 2nd agreement for supply of security guards and the 2nd agreements in respect of supply of housekeeping labourers. The plaintiff is restricted its claim in respect of 2 nd agreement for supply of housekeeping labourers and reserving its legal rights to initiate its legal claim before the arbitrator as per the agreed terms. On 07.08.2014 the 1st defendant addressed a letter to the plaintiff company with a direction to pay wages as required under the Minimum wages Act and the payments have been made as per direction. It is submitted prior to the award of contract and on or after submitting tender the 1 st defendant directed to provide two data Entry Operator which was provided by plaintiff's company and was extended from 11.11.2013 to 30.06.2014. It can be gathered that the 1st defendant 54 Com.O.S.No.309/2019 organization was using the services of plaintiff's company on the promise of awarding contract and subsequently the tender submitted by the plaintiff company was approved on the basis of lowest offer of tender. The plaintiff submits that on 21.05.2015 and 25.05.2015 the 1st defendant has addressed a letter to the plaintiff company seeking extension A.M.C. Man power for a period of 3 months W.E.F. 01.06.2015-31.08.2015. On 31.08.2015 the 1st defendant has addressed a letter seeking extension of A.M.C.Man power for a period of 3 months from 01.09.2015 to 31.11.2015. On 03.09.2015 the 1st defendant organization sent a letter in approving the revision of wages for supply of man power as per the central Government Notification No.1/17/2015/L.S.-11.
The 1st defendant has addressed five letters to the plaintiff's company for supply of man power for rendering the manual services to the said organization dated 25.08.2015, 01.09.2015, 30.10.2015, 26.03.2016 and 24.04.2016. On 11.12.2015 the 1st defendant has addressed a letter in extending the period of A.M.C. Man power for a period of 6 months W.E.F. 01.12.2015 to 31.05.2016 and admitting terms and conditions and rates per month as per the contract Document No.9 dated 03.06.2014. The 1st defendant was not clearing outstanding bills since 2014 and the bills was cleared 54 Com.O.S.No.309/2019 belatedly and the plaintiff used to manage with the payments to the employees and there was no any hindrance in supply of man power to the 1st defendant. On 09.08.2014 the plaintiff company wrote a letter to the 1st defendant to clear the bills on time. On 13.11.2015 the plaintiff addressed a letter in respect of the payment of the PF contribution of the employees. On 11.12.2014 the plaintiff addressed a letter to the 1 st defendant organization requesting to release the bills for the month of November 2013 and December 2013 which clearly establishes that the plaintiff was rendering its service to the 1 st defendant even prior to entering into the contract dated 03.06.2014. On 01.10.2015 the 1st Defendant addressed a letter tot he Plaintiff that the bills pertaining to July has already been accorded by the competent authority and directed the Plaintiff to contact account section in respect of August and September 2015, the same has been processed from this section and sent for approval. On 15.01.2016, 10.03.2016, 10.03.2016 and 19.04.2016 the Plaintiff requesting the 1st Defendant release the outstanding bills for the period of September 2015 to December 2015. On April 2016 the Plaintiff has written the letter intimating the 1st Defendant in respect of the outstanding balance to the man power provided to various department in the 1st Defendant. As per this letter the outstanding balance for the month of April to July 2015 a sum of Rs. 17,348/-. On 54 Com.O.S.No.309/2019 21.03.2016 the Plaintiff addressed a letter to the 1 st Defendant regarding the modified wages with effect from Government order and enclosed the Central Government order passed by the Ministry of Labour and Employment, Government of India. On 26.03.2016 the 1st Defendant has written a letter to the Plaintiff company informing the approval of two man power semiskilled and unskilled w.e.f. 26.03.2016. On 18.05.2016 the 1st Defendant organization has written a letter to the Plaintiff Company to provide EPF, ESI details of the employee. It is pertinent to note that the man power supplied to the 1 st Defendant are less than 20 employees and it is not mandatory to deduct the PF contribution and employees contribution and employees still the Plaintiff company has followed the procedure and also provided the information to the 1 st Defendant's office. On 19.05.2016 the Plaintiff Company addressed a letter to the 1st Defendant informing the information. It is pertinent to note that the 1 st Defendant has written a letter to the Plaintiff directing to make payments to the CDL workers claiming that some discrepancies in attendance of CDL workers at the given places as stated in the letters and directed to make payments which may be deducted from the next months bill i.e., 2015 to avoid any delay in the payment of the CDL workers this letter clearly establishes that the 1st Defendant was releasing bills of he Plaintiff's Company 54 Com.O.S.No.309/2019 not within the stipulated period. On 27.05.2016 the 1st Defendant organization has written a letter stating that the payment of wages to CDLS and statement related to deduction of EPP, EPS and ESI while scrutinizing the documents some discrepancies were observed and requested the Plaintiffs company to be present before self-formed committee by the organization rep by 2nd Defendant has directed the Plaintiff to clarify the discrepancies before the self formed committee which is not agreed terms in the contract dated 03.06.2014.
The only agreed terms as per clause 4 of the contract which reads as follows:
"Clause 4: The agency should ensure that the requisite number of labour is available every day. In case of absence of any person less labour reporting of duty an amount equivalent to one day wages of Man power (including EPF, ESI etc for such absence will be recovered from the agency from the monthly bills and in addition a penalty of Rs. 308.00 would be deducted per day per absence reported"
It is pertinent to note that the letter addressed by the 1 st Defendant organization does not disclose that D.D.s and no clarity in the letter. However the Plaintiff Company has clarified to the said committee. It is strange to note that the 1 st Defendant failed to release the bills as per the terms and conditions and no efforts have been made to release the bills. On the contrary trying to put the blame on the Plaintiff 54 Com.O.S.No.309/2019 company by addressing such untenable letters in order to cover up the misdeeds committed by the 1st Defendant rep. By the 2nd Defendant. The company sent a letter for seeking clearance of the outstanding arrears of bills on 20.05.2015 for the months and year reflects the outstanding ills and due form April 2015 to March 2016. On 30.05.2016 the Plaintiff sent a letter seeking clearance of the bills and also questioned the awarding the future contract to 3rd party since they have given the lowest bid to get the to contract as per the tender No. 13-36/IWST-RFO/EPR063 & 64. On 01.06.2016 the 1st Defendant sent a complaint to the Deputy chief labour commissioner, yeshwanthpur, Bengaluru complaining about the lapse in PF deduction and other lapses against the Plaintiff. Even though the 1st Defendant has not sanctioned arrears bills. On the contrary in order to divert the Plaintiff demanding the arrears of the pending bills. However, the Plaintiff has given suitable replay to both the PF commissioner and deputy chief labour commissioner. On 13.06.2016 again the 1st Defendant sent a letter to the Plaintiff to make timely payment to the labourer on or before 15.06.2016. It is pertinent to note that the 1 st Defendant is putting pressure on the Plaintiff without releasing the bill in order to make payment to the labourers. On 13.06.2016, 24.06.2016, 28.07.2016, 02.08.2016 the Plaintiff Company sent letters requesting the 1 st Defendant for early 54 Com.O.S.No.309/2019 clearance of the pending bills. On 10.08.2016 the Plaintiff sent detail reply to the complaint made by the 1 st Defendant to the Assistance labour commissioner in respect of the complaint of the 1st Defendant. On 16.08.2016 the Plaintiff sent a detail reply to the 1st Defendant in respect of the complaint made against the Plaintiff. On 29.09.2016 the Plaintiff addressed a letter to the 1st Defendant seeking award of contract as per the tender published by the 1st Defendant. On 17.10.2016 the Plaintiff company has addressed letter to the 1st Defendant seeking clearance of the outstanding bill. On 29.06.2016 the 1 st Defendant has addressed a letter to the Plaintiff intimating to the Plaintiff that the institute is preparing a statement of all dues to be paid to all labourers engaged in this connection. Action being initiated in this office to dispose of all pending payments outstanding to yours organization. It is pertinent to note that this letter clearly establishes that the outstanding bills for the service rendered to the 1 st Defendant have been not cleared. On the contrary frivolous complaints have been sent to the various authorities. On 28.07.2016 the Assistance labour commissioner sent a letter to the Plaintiff company to sent the comments in respect of the complaint filed by the 1 st Defendant to which the Plaintiff has already sent a detailed reply. On 02.08.2016 the Plaintiff sent outstanding bills for the period from September 2015 to May 2016 amounting to Rs. 8,22,356/-
54Com.O.S.No.309/2019 On 12.09.2016 the Plaintiff again sent one more letter seeking clearance of the bill. On 17.10.2016, 21.10.2016, 12.11.2016, 21.11.2016 Plaintiff's company addressed letters to the 1 st Defendant seeking clearance of the outstanding bills and uniform bills. It is pertinent to note that document No. 24 the Plaintiff submitted to the 1st Defendant organization regarding amount spent to the employees in providing uniform and other facilities supplied to the employees in a sum of RS. 21,750/-. On 09.12.2016 the deputy labour chief commissioner initiated the enquiry and it is evident that the Plaintiff informed the 1 st Defendant withheld the payments of bills a sum of Rs. 8,00,000/- and also the 1 st Defendant has filed complaint in respect of nonpayment of EPF, ESI, service tax etc. On 08.02.2017 the further enquiry was conducted by the Deputy chief labour commissioner and drawn a inference that the management is trying to drag the matter after discussing with both parties. The applicant is advised to approach appropriate authority to recover its due from 1 st Defendant and the enquiry was closed on 28.02.2017. The 1st Defendants the then director though accepted the outstanding bills to be paid to the Plaintiff company as per letter dated 15.12.2016. However, no payments was released even though this letter was written dated 15.12.2016 by the ten director the 2 nd Defendant to the 1st Defendant institution. It is pertinent to note that this letter 54 Com.O.S.No.309/2019 addressed by the then director 2 nd Defendant to the Plaintiff on or after awarding the contract to the third party by violating the terms and conditions of the contract dated 03.06.2014 clause No. 13. The 1st Defendant institution has not paid the outstanding bills for the period September 2015 to May 2016 and the Deputy Chief Labour commissioner has advised the Plaintiff to approach the competent authority to recover the outstanding bills to the tune of Rs. 8,00,000/-. This observation made by the Hon'ble Deputy Labour commissioner dated 28.02.2017 the 1st Defendant the then director the 2nd Defendant started filing frivolous complaints against Plaintiff to the EPF authorities and ESI authorities, which lead to the enquires and dragged the Plaintiff to face the enquires from these authorities for no fault on the part of Plaintiff. The company was constrained to address letters to the competent authorities which are connected to 1 st Defendant institution such as the Director of Administration Indian council forestry research and education, environment forest and C.C. Govt of India, New forest, Dehradum 24006, the Deputy Inspector General of Forest Ministry Environment forest and climate change, New Delhi on receipt of the complaints received by the competent authorities have advised the then 1 st Defendant director i.e., 2nd Defendant to looked into the dispute raised by the Plaintiff company. However, the 1 st Defendant institution 54 Com.O.S.No.309/2019 which was under the administration of the 2 nd Defendant did not take note of the directions issued by the above said authorities. After receipt of adverse remark received by the 1 st Defendant institution rep by the 2nd Defendant has addressed a complaint to the EPF commissioner alleging the Plaintiff's company has deposited less amount towards the EPF recoveries of the employees who were deputed to work to the needs of the 1 st Defendant's institutions. In view of the alleged complaint filed by the then director the 2nd Defendant the competent EPF authorities have initiated the proceedings as per the EPF Act and rules. In view of the notice served on the Plaintiff's company from the Asst. PF commissioner the Plaintiff company has submitted detail objection statement to the Addl, PF commissioner and also explained to the Asst. PF commissioner regarding the outstanding payments of bills, with the 1 st Defendant institution and also regarding the full payment of salary made to employees without recovering the PF deductions on the directions of the then director of the 1 st Defendant institution. The 1st Defendant the then director the 2nd Defendant has failed to settle the dispute even though the EPF recoveries has been not recovered as per the directions of the 1st Defendant director, however the Plaintiff company has deposited some amount EPF accounts to honour the welfare scheme of the employees in order to avoid the penalty. The 54 Com.O.S.No.309/2019 Plaintiff further submits that on receipt of the notice from the Asst, EPF commissioner and after submitting statement of objections dated 26.06.2017, the recovery proceedings was initiated due to the 1 st Defendant institution the then director the 2nd Defendant's frivolous complaint to he EPF commissioner, without settling the dispute payment for the period September 2015 to May 2016 and the vindictive attitude of the 1 st Defendant's the the director the 2 nd Defendant and the Plaintiff was constrained to file a writ petition No. 42270/2017 before the Hon'ble High Court of Karnataka seeking mandamus to direct the deputy inspector general of forest Ministry of environment forest and climate change new Delhi to investigate and to enquire about the dispute in not making payments of bills for the period from September 2015 to May 2016 and also in the 2nd prayer was prayed before the Hon'ble High Court of Karnataka seeking mandamus to the 1 st Defendant to cooperate with the investigation and enquiry. In writ Petition No. 42270/2017 were connected to Central Government organization have authorized the Central Government counsel to represent them and even the Central Govt, counsel have filed detail objections statement and produced certain document which are correspondence and no reliable documents are produced to prove that the outstanding payments of bills for the period September 2015 to May 2016 are furnished in order to 54 Com.O.S.No.309/2019 prove that the payment of bills for the period September 2015 to May 2016 have not been paid to the Plaintiff. Further the Plaintiff filed the writ petition before the Hon'ble High Court of Karnataka in order to avoid multiplicity of the litigation hoping to get the payments of bills for the period September 2015 to May 2016 to the tune of Rs. 8,22,356/- from the 1st Defendant's institution during the tenure of the 2nd Defendant who was the director of the 1st Defendant institution. The counsel for the Plaintiff was argued on merits for invoking writ jurisdiction of the writs under articles 227 of the constitution.
However, the Hon'ble High Court of Karnataka was pleased observe in para 7 which reads as follows:
"7. I have considered the submissions made by both the sides and have perused the record. From perusal of the record, it is evident that the dispute in this writ petition pertains to payment of amount due to the Petitioner under the contract. From the communication of minutes of meeting dated 09.12.2016, it is evident that an amount of 8,00,000/- which was due to the Petitioner was withheld and the management was advised to furnish the details or directions. If any, from the authorities for withholding the amount in question. In other words, in the minutes of the discussion held on 09.12.2016 it has not been conclusively established that an amount of 54 Com.O.S.No.309/2019 8,00,000/- which was payable to the Petitioner was withheld without ascertaining any reason to the petitioner. Similarly, from the communication of minutes of meeting dated 28.02.2017, it is evidence that the petitioner has been advised to approach the appropriate authorities to recover the dues, if any, as the dispute with regard to the contractor and the principal employer. There is no material on record to infer that respondent No. 3 without any reason has withheld the amount due and payable to the Petitioner. Besides that, the Petitioner neither impleded respondent No.3 in his personal capacity nor has attributed any malafides to him. Therefore, the question of directing an enquiry with regard to non-payment of amount which is allegedly due and payable to the Petitioner does not arise in the fact situation of the case, The Petitioner has not been able to make out any legal right and corresponding legal due to be payable from the Respondent. In the result, I do not find any merit in the petition. Therefore the petition fails and is dismissed. The writ petition field by the Plaintiff was dismissed and also observed that the Plaintiff has not impleded the 3rd respondent in his personal capacity. The writ jurisdiction is vested with the Hon'ble High Court to the limited extent which cannot go and to find out the roots of the dispute between the parties and to direct the disputing parties to adduce evidence both oral and documentary evidence in order to give findings on 54 Com.O.S.No.309/2019 the materials produced between the parties which is exclusively vested with jurisdiction of the civil court to adjudicate such dispute between the contesting parties. In view of the dismissal of the writ petition No. 42270/2017 dated 23.04.2019 the Plaintiff was constrained to file an interim application before the Hon'ble High court of Karnataka seeking liberty to file the Civil suit before this Hon'ble Court in order to raise a civil dispute between the 1st Defendant institution and the then Director of the 1st Defendant institution the 2nd Defendant. The Hon'ble High Court of Karnataka was pleased to grant liberty to the Plaintiff to file a civil suit if so advised on 20.06.2019. The 1 st Defendant's director and the then director of the 2 nd Defendant have filed a complaint before the PF commissioner in respect of non remitting PF contribution of the employees which was adjudicated by the Asst. PF Commissioner officer, peenya, Bengaluru was pleased to pass an order on 25.09.2017 against the Plaintiff and directed to deposit a sum of RS. 15,50,379/- towards PF contribution. It is pertinent to note that while passing this order the competent authority i.e., the Asst. PF Commissioners observed in para No. 4 which reads as follows;
" On 16.05.2017 Smt. Praneetha Paul, IFS, complainant- ordination (Facilities), Shri Anil Shetty and Shir Ritesh Kumar has appeared on behalf of the complainant M/s Institute of wood science and Technology and submitted internal committee 54 Com.O.S.No.309/2019 report of IWST on the discrepancies by M/s Sri. Balaji Enterprises in payment of statutory dues wherein the committee observed that there is a underpayment of M/s Sri. Balaji Enterprises towards PF. The report is taken on record.
On 28.06.2017, the employer submitted letter and stated that ' labors have given in writing that, dye to their family financial problems they were un willing for PF contributions and requested us to give the PF amount every month along with salary which they intimated to the IWST authorities and subsequently IWST authorities also agreed and advised them to give their PF contribution along with salary in present of an authorized officer of IWST.' "The IWST have agreed for this arrangement since their labours are used after stipulated working hours also without paying overtime payment and in lieu of the same PF amount can be returned and a small amount can be put in PF account was the advice by the authorities to them. In view of the same every month full contribution of the PF amount to each labour disbursed along with salary in presence of their authorized officer hence no issues propped up till date."
The Asst. PF commissioner was pleased to grant 15 days time to deposit the amount ordered. However, the Plaintiff could not arrange and deposit the said amount the Asst. Commissioner PF was pleased to pass an order on 13.10.2017 54 Com.O.S.No.309/2019 directing the Branch Manager Canara Bank, Chandra Layout Branch No. 08, 80 ft. Road, Chandra Layout, Attiguppe, Bengaluru by seizing the account maintained in the said bank is is relevant to refer the para No.3 of the order which reads as follows:
"Should the amount present standing to the credit of M/s Sri. Balaji Enterprises #07, 80 feet Road, Chandra Layout, Bengaluru bearing code No. PY/PNY/31053 in the Bank accounts SB/current account (s), Fixed Deposits, Receipts, C.C. A/c, Overdraft or any other type of A/c etc., of the defaulting establishment in your branch be sufficient to clear the arrears of the 7A dues recoverable from the above named defaulting establishment. Such amount as are currently standing to their credit may be paid to the credit of the Regional provident fund commissioner, RO, Peenya through A Demand Draft. In view of the seizure of the bank account and on the relevant point of time the Cental Government, Industrial Tribunal cum-labouor court, shram Sadan, 3rd Cross, 3rd Main, Yeshwanthpur, Tumkur Road was not having presiding judge and the court was vacant the Plaintiff was constrained to file writ petition no. 8034/2018 before the Hon'ble High Court of Karnataka and the Hon'ble High Court of Karnataka was pleased to direct the Plaintiff to deposit 50% of the recovery amount ordered by the Asst. PF Commissioner on 25.09.2019. In view of the same the Plaintiff 54 Com.O.S.No.309/2019 has deposited a sum of Rs. 7,75,190/- by way of two demand drafts drawn on Canara Bank in favour of the Regional PF commissioner office, Peenya consists of Rs. 6,32,490/- and 1,42,700/- respectively and handed over to the regional PF commissioner. The above said Rs. 7,75,190/- was paid by the Plaintiff as per the directions of the Hon'ble High Court of Karnataka, Bengaluru in WP No. 8034/2018 dated 01.03.2018. The 1st Defendant institution is recognized by the Central Government of India and part and parcel of Central Government organization. The bills submitted to the 1st Defendant institution might have got sanctioned from the competent authority and not paid to the Plaintiff's company and committed to breach of contract as per the terms and conditions in the agreement. The appeal field by the Plaintiff challenging the impugned order passed by the Asst. PF Commissioner Peenya, Bengaluru before the Hon'ble Central Industrial Tribunal cum labour court bengaluru in appeal No. 670/2017 is pending. The pending bills for payment for the period September 2015 to May 2016 to the tune of Rs. 8,22,356/- was submitted to the 1 st Defendant institute during the tenure of 2 nd Defendant as a director to the 1st Defendant institution. Hence filed this suit for the above- mentioned relief.54
Com.O.S.No.309/2019
3. The Defendants have resisted the claim of the Plaintiff and filed Written Statement. The defendant has contended that this court has no jurisdiction to try this suit. Plaintiff without settling the full payment to the laborers and statutory contributions to the Government organizations has no right to file suit against the Defendants. The suit filed against the Defendant No.2 is mis-joinder of necessary party. He is only public servant, he did his duty as per law, in official capacity. The Plaintiff filed the suit against the Defendant No.2 in personal capacity, hence the suit is not maintainable. The suit is not maintainable in view of Order XXVII rule 5-A of CPC. The union of India is a necessary party but Union of India is not made as a party to this suit hence suit is bad for non-joinder of necessary parties. The Plaintiff also not issued notice under Section 80 of CPC to the Defendant hence above suit is dismissed on said score itself. That there is a agreement between the Plaintiff and the Defendant No.1 on 01.05.2014. In the said agreement it is very clear that in clause No.8 " the agency shall made disbursement of wages/salary to all persons employed by them as per the Central Government minimum wages rate and the labour law and engage minimum wages is paid. The suit is not maintainable as per clause 14 of the agreement. In the said clause very clearly stated that " the courts of Bangalore alone have exclusive jurisdiction to 54 Com.O.S.No.309/2019 entertain any dispute arising out of this agreement or in respect of any arbitrary proceedings arising in respect thereof. Hence there is a arbitrary clause, this court have no jurisdiction to try this matter. The Plaintiff have to deposit of EPF and ESI contributions of his employees. The said fact is very clearly mentioned in the clause No. 21 of the agreement. The Plaintiff without complying the agreement clause, field suit against defendant is not maintainable. It is clearly breach of contract. The terms and conditions of the agreement is very clear that, the Plaintiff had to pay the salary, EPF and ESI contribution to the concern department, but Plaintiff without paying the contribution and salary to his employee approached this court. Hence this court may be pleased to dismiss. The Plaintiff has claimed EPF and ESI contribution and Defendant No.1 paid the contribution to the Plaintiff. It is important to mention that, in case a company has more than 20 employees irrespective of their deployment in various establishments, the company has to remit EPF contribution. If the companies having even less than 20 employees each employee is entitled for ESI contributions. The Plaintiff was irregular in remittance of both EPF and ESI contributions. As per the agreement Plaintiff has to make the payment to the workers and then claim for payment from first Defendant but Plaintiff wrongly stating that the payment was not made within the stipulated period. The second 54 Com.O.S.No.309/2019 Defendant was the then director, of the 1st Defendant and based on the enquiry report of the campus in charge, two committees were formed for detailed equiry and the committee found that the Plaintiff company was not making regular payment. The Defendants organization has informed the Plaintiff to clarify about the same. Based on committees report the Plaintiff was asked to reply with evidence for making proper statutory payments in favour of laborers deployed in 1 st Defendant organization vide letter No.8/36/2016-17/IWST/RFO/E0pro/1832 dated 05.08.2016. After issuance of said letter plaintiff had not submitted any documentary evidence. Therefore the Plaintiff was informed that the total liability on his part is Rs. 16,82,802/- and withheld payment to the Plaintiff by the Defendant organization is Rs. 8,22,356/-. The Plaintiff was asked to deposit balance amount of Rs. 8,60,446/- within 10 days from the date of receipt of letter No. 8-74/2016-17/IWST/RFO/AMC bills/2358 dated 19.09.2016. The Plaintiff did not heed to the correspondences asking plaintiff to deposit the balance amount of Rs. 8,60,446/- to settle the payment to the laborers and other statutory organization. The Plaintiff field a writ petition against the Defendants in WP Mo. 42270/2017. The Hon'ble High Court is pleased to dismiss the said writ petition holding that there is no merit on record and further held that the Plaintiff had not been 54 Com.O.S.No.309/2019 able to make out any legal right and corresponding legal due to payable from the defendant, in the result do not find any merits in the petition therefore the petition fails and is dismissed. The deputy Chief labour commissioner has drawn an inference that the management is trying to drag the matter after discussing with both the parties. Deputy Chief Labour commissioner has mentioned in the minutes of Joint discussion dated 28.02.2017 that " applicant on the other hand stated that the matter is pending for long time and the management is trying to drag the matter". It is very clear that Plaintiff is trying to misleading the court. The Plaintiff was asked to deposit balance amount of Rs. 8,60,446/- within 10 days from the date of receipt of letter No. 8-74/2016-17/IWST/RFO/AMC bills/8358 dated 19.09.2016 but the Plaintiff did not bother to the correspondences asking him to deposit to the balance amount to settle the payment to the laborers and other statutory organization. As per the agreement it is very clear that Plaintiff has to clear the payment of labourers, then only Plaintiff bills will be dispersed. The Plaintiff has not fulfilled the terms and conditions of the agreement, and plaintiff committed breach of contract as per the terms and conditions in the agreement accordingly, the Hon'ble High Court has rejected the plaintiff claim. Hence this suit is not maintainable. There is no cause of action for filing this suit. The suit is time barred debt. The Hon'ble High Court not give any 54 Com.O.S.No.309/2019 liberty to file suit against these Defendants. Hence, the Defendants prays that to dismiss the suit with exemplary costs, in the interest of justice and equity.
4. Based on the above pleadings, the following issues arise for my consideration :-
1. Whether the Plaintiff proves that the 1 st defendant institution not paid the outstanding bills for hte period of September 2015 to May 2016 amounting to Rs. 8,22,356/- ?
2. Whether the suit is bad for non-joinder of necessary party and mis-joinder of party ?
3. Whether this court has no jurisdiction to try this case ?
4. Whether the Plaintiffs proves that the Defendant is liable to pay a sum of Rs.
23,66,220/- along with interest 18% per annum ?
5. What order and decree ?
5. My findings on the above Issues are as under:
1. Issues No.1 :- In the Partly Affirmative.
2. Issues No.2 :- In the Negative.
3. Issues No.3 :- In the Negative.54
Com.O.S.No.309/2019
4. Issues No.4 :- In the Partly Affirmative.
5. Issues No.5 :- As per the final Order for the following reasons.
REASONS
6. Issue No.1 and 4 :- The Plaintiff to substantiate its case, the Proprietor, Sri. Venkateshaiah examined has PW.1. PW.1 has filed his affidavit in the form of examination in chief. The PW.1 in his evidence reiterated averments of the Plaint and got marked Ex.P.1 to Ex.P.31 and Ex.P.1 to Ex.P.30 were marked on the basis of the statement of admissions and denials during case management hearing. The Advocate for Defendant cross- examined PW.1 in detail. The facts elicited during cross- examination is to be considered herein after at appropriate stage.
7. On the other hand the Deputy Range Forest officer of the Defendant Sri. Raju Thomas examined has DW.1. DW.1 has filed his affidavit in the form of examination in chief. The DW.1 in his evidence reiterated averments of the written statement and got marked Ex.D.1 to Ex.D.33. It is pertaining to note that the Ex.D.1 to Ex.D.5 marked on the basis of Statement of Admissions and Denials during case management hearing. The Advocate for Plaintiff cross-examined DW.1 in detail. The facts 54 Com.O.S.No.309/2019 elicited during cross-examination is to be considered herein after at appropriate stage.
8. In this case it is admitted fact that In view of the acceptance of the plaintiff's company quotation, the 1 st defendant organization has entered into two unregistered contract in the E.Stamp which was purchased by the plaintiff company's proprietor Sri. Venkateshaiah and V.Ramakanth, Director IWST, Malleshwaram dated 03.06.2014. It is pertinent to note that on acceptance of the plaintiff's quotation for supply of man power to the 1st defendant's organization issued work order to the plaintiff company on 26.05.2014, for supply of man power of 1 driver, 2 Gardner and two sweepers. It is also admitted that the two agreements have been entered between the Plaintiffs company and the 1 st Defendant's organization the 1st Agreement in respect of supply of security guards and 2nd Agreement in respect of supply of housekeeping labourers. The plaintiff is restricted its claim in respect of 2 nd agreement for supply of security guards and the 2 nd agreements in respect of supply of housekeeping labourers.
9. It is the case of the Plaintiff that the 1 st defendant was not clearing outstanding bills since 2014 and the bills was cleared belatedly and the plaintiff used to manage with the payments 54 Com.O.S.No.309/2019 to the employees and there was no any hindrance in supply of man power to the 1st defendant. On 01.10.2015 the 1 st Defendant addressed a letter tot he Plaintiff that the bills pertaining to July has already been accorded by the competent authority and directed the Plaintiff to contact account section in respect of August and September 2015, the same has been processed from this section and sent for approval. On 15.01.2016, 10.03.2016, 10.03.2016 and 19.04.2016 the Plaintiff requesting the 1st Defendant release the outstanding bills for the period of September 2015 to December 2015. On April 2016 the Plaintiff has written the letter intimating the 1 st Defendant in respect of the outstanding balance to the man power provided to various department in the 1 st Defendant.
10. According to the Plaintiff the Defendant is liable to pay the bills pertaining to the to the uniforms, stationery charges and house keeping expenses of Rs. 7,32,269/-, and sum of Rs. 36,405/- to the employees towards wages increases, and it is also admitted fact that the Plaintiff claiming the pending for the period 2015-2016 bill amount of Rs. 8,22,356/-. On the contrary in the prayer column the Defendant has claimed amount of Rs. 23,66,220/- from the Plaintiff. But the Plaintiff has not narrated any explanation how he has arrived the total amount of Rs. 23,66,220/- and the averments of the plaint does 54 Com.O.S.No.309/2019 not discloses that a single word how the Plaintiff has arrived this figure of the 23,66,220/-. Even by considering the amount claimed by the Plaintiff in para No. 36, 37 and 38 total amount it comes to 15,91,034/-.
11. First we consider the claim of the Plaintiff sum of Rs. 7,32,269/- pertaining to the uniform charges and house keeping expenses paid by the Plaintiff. On the other hand the Defendant contention that the Defendant has not agreed to pay the amount towards the uniform charges stationary and house keeping expenses as per the contract.
12. During the cross examination of PW.1 admitted as per the agreement their company shall provide uniforms, shoes and house keeping uniforms and cleaning materials to the labours and he also admitted that as per the agreement he cannot claim the amount which was spent towards uniforms of the labours and cleaning materials. In view of the admission of the PW.1/Plaintiff is not entitle the amount claimed 7,32,269/- towards uniform charges and house keeping charges and stationary.
13. Further, the Plaintiff has sent outstanding bills for the period from September 2015 to May 2016 amounting to Rs.
54Com.O.S.No.309/2019 8,22,356/-. The Defendant contention that the claim amount for bill amount is not Rs. 8,60,446/-, but pending bill amount is only Rs. 8,22,356/- out of which Defendants paid a sum of Rs. 1,33,224/- towards the wages of the employer the total due amount is Rs. 6,68,948/-. The Plaintiff without fulfill the terms and conditions of the agreement dated 01.05.2014, he filed the suit against the Defendant without any valid basis. The Defendants withheld the bill amount of Rs. 6,68,948/- rest of the bill amount are cleared by the Defendant department.
14. During the cross-examination of DW.1 admitted that There is no clause in the agreement in case of default in payment of the salary to employees by the contractor then the Defendant has an authority to pay salary to the employees of the Plaintiff. There is no clause in the agreement at Ex.D.8 if the Defendant institution paid the salary to the employees of the Plaintiff then the defendant should adjust the amount towards pay bill of the Plaintiff.
15. The Defendant has produced withheld pending bills with statement which is marked as Ex.D.4 and also produced the payment statement with receipt for a sum of Rs. 1,33,224/- paid to the Plaintiff's employees at Ex.D.13 and Ex.D.14. The question before this court whether the Defendant has right to 54 Com.O.S.No.309/2019 pay amount if the Plaintiff is failed to pay the salary to the employees of the Plaintiff. Ofcourse the Defendant has issued the notice pertaining to the disbursement of the salary to the employees of the Plaintiff.
16. As per the agreement at Ex.D.8 clause 8 "the agency shall make the disbursement of wages to salary to all persons employed by them as per central government minimum wages rate and labour law and engage minimum wages is paid".
Clause 21 of the agreement at Ex.D.8 Agreement clause No. 21 "Proof for deposit and maintenance of EPF and ESI contributions against each and every employees. But, the Plaintiff has not produced any document to shows that he has contributed the amount towards EPF and ESI. It is an admitted fact that the Plaintiff has not contributed the amount towards EPF and ESI and also not disbursed salary for the month may 2016 to the employees. The Defendant paid a sum of Rs. 1,33,224/- towards salary of the employees of the Plaintiff for the month of May 2016 same can be seen from Ex.D.13 to Ex.D.33. Further the Plaintiff has not disputed regarding the payment of salary for the month of May 2016 by the Defendant. It is only contention of the Plaintiff that the Defendant has no authority to disburse the salary to his employees and the Defendant cannot adjust the said amount 54 Com.O.S.No.309/2019 towards pending bills.
17. It is the case of the Plaintiff that manpower supplied to the 1st Defendant less than 20 employees and it is not mandatory to deduct the PF contribution and employees contribution and employees still the plaintiff company has followed the procedure and also provided information to the 1 st Defendant office as per letter dated 18.05.2016. The Plaintiff has not explained how the Defendant is liable to pay the suit claim amount. The Defendant is withheld only Rs. 6,68,948/-. The Defendant is ready to disperse the said amount to Plaintiff subject to produce the documents.
18. It is important to mention that, in case a company has more than 20 employees irrespective of their deployment in various establishments, the company has to remit EPF contribution. If the companies having even less than 20 employees each employee is entitled for ESI Contributions. THE Plaintiff was irregular in remittance of both EPF and ESI contribution. As per the agreement Plaintiff has to make the payment to the workers and then claim for payment from first Defendant but Plaintiff wrongly stating that the payment was not made within the stipulated period.
54Com.O.S.No.309/2019
19. Provident Fund Registration is mandatory for every Company/ LLP/ Partnership Firm/ Proprietorship Firm or any other organization which employs more than 20 individuals, including contractual and permanent employees.
20. Any organization that has 20 or more employees is liable to maintain a provident fund account for its employees. There is no limit to the employees' contribution to PF, he can contribute up to 100% of his Basic + DA (PF Wages) towards PF, but it must be a minimum of 12 per cent of the same.
21. However, if your employee draws a salary more than Rs.15,000 per month, then he/she can also choose to not contribute to the Provident Fund. This is possible only if he meets certain criteria. f the employee is deputed overseas to a country with which India has a bilateral Social Security Agreement, he can obtain a Certificate of Coverage (CoC) from EPF authorities and avail exemption from contribution towards host country Social Security Scheme.
22. The employees provident fund the scheme run by the employees organization which is aimed at provided Social Security Scheme and retirement benefit. The organization with 20 or more employees more required by law to register for EPF 54 Com.O.S.No.309/2019 scheme few 20 employees can also register voluntarily. If they are draws a salary more than Rs.15,000 per month they are termed as a non visible employee and it is not a mandatory for them to became a member of the EPF. Althought they can still register consent of their employer and approval from the PF Commissioner. Ofcourse the Plaintiff firm provided one CDL workers semiskilled under AMC Contract.
23. It is pertinent to note that on acceptance of the plaintiff's quotation for supply of man power to the 1 st defendant's organization issued work order to the plaintiff company on 26.05.2014, for supply of man power of 1 driver, 2 Gardner and two sweepers. However on the advice of the 1 st defendant's organization two agreements have been entered between the plaintiffs company and the 1st defendant's organization the 1st agreement in respect of supply of security guards and the 2nd agreements in respect of supply of housekeeping labourers. The plaintiff is restricted its claim in respect of 2nd agreement for supply of security guards and the 2nd agreements in respect of supply of housekeeping labourers. The Plaintiff contended that under the Man power under the different contract in different numbers, it is not the case of the Plaintiff that their organization is not having more than 20 labourers and nowhere he has stated that in their organization 54 Com.O.S.No.309/2019 number of employees less than 20. Under such being the case, it is a mandatory in view of the above discussion the Plaintiff has to contribute the amount towards the EPF and ESI.
24. It is an admitted fact that as per Ex.P.23 is the proceedings initiated by Asst. Labour Commissioner (Central) Yeshwanthpur Industrial Sub-Urb, 2nd Stage, Tumkur Road, Bengaluru - 560 022 dated 28.07.2016 on a representation regarding non-payment/less payment of wages and PF contribution to the labourers provided by service contractor M/s Sree Balaji Enterprises, Bengaluru and directed both the parties to submit comments/views in five sets within 15 days from the date of receipt of the letter. Ex.P.24 is dated 09.12.2016 minutes of discussion held between the parties and after certain observations, regarding the disputes between the parties the Plaintiff company was advised to approach appropriate authority to recover the pending payment of over eight lakhs from the Defendant institute. The Defendant contention that the suit is barred by time last bill according to Plaintiff is may 2016, plaintiff filed an suit before this court on 18.10.2019, it is more than three years. Hence suit of the Plaintiff is time barred. The Hon'ble High Court granted only to liberty to file suit if any bill amount is pending. The Hon'ble High Court not condone the delay. Ex.P.25 is the order sheet in 54 Com.O.S.No.309/2019 WP No. 42270/2017 passed by the Hon'ble High Court of Karnataka in WP No. 42270/2017 in I.A. No.I/2019 dated 20.06.2019 modifying the order of dismissal of the writ petition dated 23.04.2019 and directed the Petitioner to file a civil suit if so advised and I.A. No.I/2019 is disposed off and this particular order is marked at Ex.P.26. Hence, the suit is filed within the limitation period.
25. The Plaintiff has produced Ex.P.27 is the agreement enquiry order passed by the Asst. PF Commissioner under Section 7 AEPF Act and directed the Plaintiff company to deposit in a sum of Rs. 15,50,379/- towards the arrears of PF contribution which is also reflected in Ex.D.2 filed by the Defendant institution along with assessment statement of Asst. PF Commissioner, it is further to be taken judicial note that the Asst. PF Commissioner has assessed the PF contribution of the employees from April 2014 to April 2017, even though the Plaintiffs contract came to an end on 31.05.2016. However, the Plaintiff has initiated a proceeding in W.P.No.14893/2021 (PF) against the Asst. PF Commissioner for refund of excess assessment ordered for the period June 2016 to April 2017.
26. The Plaintiff admitted during cross examination that " it is true to suggest that total bill amount of Rs. 93,38,695/- for a 54 Com.O.S.No.309/2019 period of 2014-2015 to 2016 out of Rs. 93,38,695/- the TDS deducted of Rs. 1,73,464/-. The Defendant was liable to pay only of Rs. 84,96,283/- As can be seen from Memo of calculation it is very clearly mentioned that bill amount for the year is 2014-2015 of Rs. 54,37,841/- and TDS deduction of Rs. 1,08,761/- net pay amount of Rs. 53,29,080/-. The bill amount for the year is 2015-16 of Rs. 31,95,243/- and TDS deduction of Rs. 63,970/- net pay amount of Rs. 31,31,273/-. The bill amount for the year 2016-2017 of Rs. 36,663/- and TDS deduction of Rs. 733/- net pay amount of Rs. 35,930/-. Pending amount from defendant side for the period of 2015-2016 is Rs. 2,61,524.66 pending amount from defendant side for the period of 2016- 2017 is RS. 4,07,424/- totally Rs.93,38,695.66 and TDS of Rs. 1,73,464/- bill paid by the Defendant to Plaintiff for Rs. 84,96,283/-. As can be seen from the Ex.D.13 to Ex.D.33 it is very clear that the Defendant paid the salary of Plaintiff employee for a sum of Rs. 1,33,224/- for the month of May 2026. So it is very clear that pending bill amount is only Rs. 6,68,948.66 after deducting of may month salary. The Defendant is withheld an amount of Rs. 6,68948/- only. The Plaintiff has not produced any documents to prove that the Defendant is liable to pay the amount of Rs.23,66,220/-. The Plaintiff stated that for a sum of Rs. 8,22,356/- bill amount is due from Defendant side. The Plaintiff deposit 50% of the 54 Com.O.S.No.309/2019 recovery amount ordered by the Asst. PF Commissioner on 25.09.2019 totally Rs. 23,66,220/-. It is clear that 50% deposited before Asst. PF Commissioner. So, the Defendant is not liable to pay entire Rs. 23,66,220/-. The Plaintiff himself admitted that the bill amount of Rs, 8,22,356/- is due from the Defendant side.
27. The Defendant cannot be withhold of bill amount. If the Plaintiff is violated the terms and conditions of the contract regarding the contribution towards ESI and PF then it is look out of the labour department. So the Defendant is withhold amount without any reason.
28. By considering all the facts and circumstances, I hold that the Plaintiff is fail to establishes that he is entitle to recover the entire suit claim of Rs. 23,66,320/- from the Defendant. However it is proved that the Defendant has illegally withhold the amount of Rs.6,68,948/-. So, the Plaintiff is entitle for recovery of Rs. 6,68,948/- from the Defendant.
29. As Per section 34 of the of Civil procedure code reds as under:
Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit 54 Com.O.S.No.309/2019 to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum, as the Court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit.
Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions.
30. The Proviso to Section 34 provides an exception to provision i.e., main principle may not apply. The function of the proviso is that the proviso to a particular provision of statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted as a proviso and to no other. In this case the Plaintiff has claimed interest at 18% per annum as already discussed that the Defendant has withhold the amount of Rs. 6,68,948/- without any right, as per the proviso of Section 34 the court has discretionary power to grant the more than 6% per annum. Admittedly, the suit agreement is a commercial in nature. Hence, the Plaintiff is entitled to claim the interest at 18% per annum. Hence, I answer Issue No. 1 and 4 in Partly Affirmative 54 Com.O.S.No.309/2019
31. Issue No. 2 : The Defendant has taken a contention that the suit is not maintainable in view of Order XXVII Rule 5-A of CPC. The union of India is a necessary party but Union of India is not made as a party to this suit hence suit is bad for non-joinder of necessary parties. The Plaintiff also not issued notice under Section 80 of CPC to the Defendant hence the suit is dismissed on said score itself.
32. The Advocate for the Plaintiff argued that the Union of India is not a necessary party to this suit and Order XXVII Rule 5-A of the CPC is not applicable to the facts and circumstances of this case. Order XVII Rule 5-a of the CPC is reads as follows:
" Government to be joined as a party in a suit agianst a public officer- where a suit is instituted against a public officer for damages or other reliefs in respect of any act alleged to have been done by him in his official capacity the Government be joined as a party to the suit."
33. The case on hand the IWST is a wing of the Union of India and an autonomous body and the director of the Defendant institute is vested the administration of the institute with and the agreement entered with the Plaintiff company is the director of the institute and not on behalf of Union of India. So, it is clear that the defendant is an autonomous body and 54 Com.O.S.No.309/2019 director of the Defendant is entered into an agreement with the Plaintiff for supply of the man power.
34. The Advocate for the Plaintiff relied upon a decision in T. Ravindra Raju and Others vs. The Singareni Collieries Company Limited the Hon'ble Andhra Pradesh High Court held that:
" A statutory body - whether it be Electricity Board or the Food Corporation or Urban Development Corporation or any of that category - may be an instrumentality of the State within the meaning of Art.12 of the Constitution. It nevertheless would not answer the description of Government as understood in law and as it is understood in the context of S.80 C.P.C.
The precise question had been considered by the Kamataka High Court in Shivamurty v.
Chairman, K.E. Board, ILR (1980) 1 Kant 686. The scheme of the Electricity Supply Act and the legal principles applicable have been surveyed in that decision. The ultimate finding is that the Electricity Board is not a Government and its officers are not public officers, in the context of S.80, C.P.C. The neat analysis of the legal and constitutional provisions as attempted by the learned Judge has my unreserved approval. The conclusion is :
"...... in spite of the control and supervision exercised by the State Government on the funds and the activities of the Board, it cannot be held to constitute a "Government' for the purpose of S.80 of the C.P. Code."54
Com.O.S.No.309/2019 The question has been discussed in the context of other statutory bodies like the Urban Development Corporation and the like. The High Courts of Patna, Punjab and Haryana and Karnataka have taken the view that such authorities would not be 'Government' within the meaning of S.80 C.P.C. The reasoning in those decisions will apply with equal force to the present case."
For the purpose of finding out whether a notice under Section 80(1) of the CPC is to be given before filing a suit against the Board or its officials what is required to be seen is whether the board which is a body corporate can be considered to constitute a 'Government' and its officers can be said to public officers as defined in Section 2 (17) of CPC. I have already held that the board is a body corporate having its independent legal personality cannot be held to constitute a 'Government'. Accordingly, notice under Section 80(1) of CPC is not required to be given before instituting a suit against the Board.
35. In the present case, the defendant has not been able to establish before the Court that the Wood Technology although being an autonomous body / institution under the Ministry of Human Resources, Govt. of India is "government" in strict sense of phrase "Government" as used in Section 80 of the CPC. This Court is of an opinion that the defendant Wood Technology cannot be equated to the Govt. as used in Section 80 of the CPC and as such, it cannot be said that the suit is bad for non-service of notice under Section 80 of the CPC.
54Com.O.S.No.309/2019
36. Hence, in view of the above decision, in the present case the Defendant is institute of Wood Science and Technology is an autonomous Council of Ministry of Environment and Forest Govt. Of India. So, in view fo the above dicision notice under section 80 of CPC is not required to file this suit and Union of India is not necessary party to this suit. Hence, i answer Issue No. 2 in the Negative.
37. Issue No.3: The Defendant has taken a contention that the suit is not maintainable as per the clause 14 of the agreement reads as that "the court of bengaluru to exclusive jurisdiction to entertain any dispute arising out of this agreement in the arbitral proceedings". Hence this court has no jurisdiction to try this matter.
38. Perused the agreement at Ex.D.8, clause 14 reads as udner:
" The courts of Bangalroe alone have exclusive jurisdiction to entertain any dispute arising out of this agreement or in respect of any arbitrary proceedings arising in respect thereof.
39. A reference requires the assent of both sides. If one side is not prepared to submit a given matter to arbitration when there is an agreement betweent them that it should be referred, 54 Com.O.S.No.309/2019 then recourse must be had to the court under Section 20 of the Act and the recalcitrant party can then be compelled to sumbit the matter under sub-section (4). In the absesnce of either, agreement by both sides about the terms of reference, or an order ofhte court under Section 20 (4) compelling a reference, the arbitrator is not vested with the necessary exclusive jurisdiction.
40. Going by Section 8 of the Arbitration and Conciliation Act, I am of the opinion that mere inclusion of an arbitration clause in the agreement does not bar or cause to oust the jurisdiction of the civil court provided Under Section 9 of the Code of Civil Procedure.
41. In the present case the clause No. 14 has clealry shows that the courts of bengaluru to entertain any dispute arising out of agreement. Hence, this court has jurisdiction to try this matter. Hence, i answer issue No. 3 in the Negative.
42. Issue No. 5: From the above discussion I hold that the Plaintiff has proved that the defendant is liable to pay the amount of Rs. 6,68,948/- with interest at 18% per annum from the date of the suit till the realization. Therefore, I proceed to pass the following Order.
54Com.O.S.No.309/2019 ORDER The Suit of the Plaintiff is decreed in part with cost.
The Defendants are hereby directed to pay to the Plaintiff, a sum of Rs.6,68,948/-
along with interest at the rate of 18% per annum from the date of suit till realization.
Draw Decree accordingly.
The Office is directed to send copy of this Judgment to Plaintiff and Defendants to their email ID as required under Order XX Rule 1 of the Civil Procedure Code as amended under Section 16 of the Commercial Courts Act.
( Dictated to the Stenographer, typed by her directly on computer, verified and then pronounced by me in open Court on this the 27th day of January, 2023).
(SUMANGALA S. BASAVANNOUR), LXXXII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF THE
PLAINTIFF
P.W.1 V. Venkateshaiah
54
Com.O.S.No.309/2019
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE PLAINTIFF Ex.P.1 Work order dated 26.05.2014 Ex.P.2 Agreement dated 03.06.2014.
Ex.P.3 Letter dated 07.08.2014.
Ex.P.4 Letter dated 01.10.2014.
Ex.P.5 Letter of 1st Defendant dated 06.05.2014.
Ex.P-6 Letter of 1st Defendant dated 09.05.2014.
Ex.P.7 Letter issued by the 1st Defendant to the
Plaintiff dated 21.05.2015.
Ex.P.8 Letter issued by the 1st Defendant to the
Plaintiff 31.08.2015.
Ex.P.9 Letter dated 03.09.2015.
Ex.P.10 Letter dated 25.08.2015.
Ex.P.11 Letter dated 01.09.2015.
Ex.P.12 Letter dated 01.10.2015.
Ex.P.13 Letter dated 30.10.2015.
Ex.P.14 Letter dated 26.03.2016.
Ex.P.15 Letter dated 24.04.2016.
Ex.P.16 Letter dated 11.12.2015.
Ex.P.17 Letter dated 18.05.2016.
Ex.P.18 Letter dated 10.07.2015.
Ex.P.19 Letter dated 27.05.2016.
Ex.P.20 Complaint dated 01.06.2016 to the
Deputy Chief Labour Commissioner.
Ex.P.21 Letter dated 13.06.2016.
Ex.P.22 Letter dated 29.06.2016.
Ex.P.23 Letter dated 28.07.2016.
Ex.P.24 Minutes of discussion held by the Deputy
Labour Commission.
Ex.P.25 Copy of writ petition No. 42270/2017.
Ex.P.26 Order dated 20.06.2019.
54
Com.O.S.No.309/2019
Ex.P.27 Order passed by the Assistance PF
Commissioner.
Ex.P.28 Agreement dated 01.05.2014.
Ex.P.29 Copy of deposition in ESI application No.
05/20119
Ex.P.30 ESI application Order dated 31.12.2021.
Ex.P.31 Pan card.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE
DEFENDANT
D.W.1 Raju Thomas
LIST OF DOCUMENTS EXHIBITED ON BEHALF OF THE DEFENDANT Ex.D.1 Investigation report from service tax dated 19.05.2017.
Ex.D.2 Proceedings of the Assistant Provident Fund Commissioner dated 25.09.2017.
Ex.D.3 Order passed under Section 45-A of ESI Act.
Ex.D.4 Pending bill statement.
Ex.D.5 Bill dated 3.10.2015.
Ex.D.6 Authorization letter.
Ex.D.7 Photocopy of the agreement dated
01.05.2014 (original agreement is in the
custody of the plaintiff. The advocate for
the plaintiff submits that original
agreement is produced before the Labour
Court and ESI Tribunal. Hence, submits no
objection to mark this document).
Ex.D.8 Photocopy of the agreement dated
54
Com.O.S.No.309/2019
01.05.2014 (original agreement is in the
custody of the plaintiff. The advocate for
the plaintiff submits that original
agreement is produced before the Labour
Court and ESI Tribunal. Hence, submits no
objection to mark this document).
Ex.D.9 Statement of the payment details.
Ex.D.10 Certificate under Section 65B of Indian
Evidence Act.
Ex.D.11 52 Pending bills.
Ex.D.12 Payment details of M/s Balaji Enterprises
during the month of May 2016 to
September 2016.
Ex.D.13 Details of the labour wages for the month
of May 2016.
Ex.D.14-32 19 receipts.
Ex.D.33 14 statements.
(SUMANGALA S BASAVANNOUR),
LXXXII Addl.City Civil & Sessions Judge,
Bengaluru.