Delhi District Court
M/S Elmeco Projects Pvt. Ltd vs M/S Hpl Electric And Power Limited on 23 March, 2026
IN THE COURT OF MR. ANIL KUMAR SISODIA
DISTRICT JUDGE (COMMERCIAL COURT)-04,
CENTRAL, TIS HAZARI COURTS, DELHI.
CNR No.: DLCT01-007443-2022
CS (Comm.) No. 1234/2022 &
and
CNR No.: DLCT01-016497-2022
COUNTER CLAIM No. 58/2022
M/S ELMECO PROJECTS
PRIVATE LIMITED
Through its Authorized Representative
Regd. Office at: 802, Shakuntala,
59 Nehru Place, New Delhi-110019
...PLAINTIFF/RESPONDENT
Versus M/S HPL ELECTRIC & POWER LTD.
Through its Directors Registered office at:
1/20, Asaf Ali Road, Central Delhi, New Delhi-110002 Also at:
Windsor Business Park, B-1, DB Block, Sector-10, Noida, UP-201301 .... DEFENDANT/COUNTER CLAIMANT Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 1 of 60 SISODIA 2026.03.23 15:44:09 +0530 Date of e-filing of the suit : 06.05.2022 Date of e-filing of Counter Claim : 30.11.2022 Date of reserving judgment : 10.02.2026 Date of judgment : 23.03.2026 Judgment
1. Vide this common judgment, I shall dispose of the suit for recovery of Rs. 20,32,392/- filed by the plaintiff against the defendant and a counter claim for recovery of Rs. 27,14,265.52 filed by the defendant/counter claimant against the plaintiff/respondent.
PLEADINGS IN THE SUIT:
2. As per the plaint, plaintiff is a company incorporated under the Companies Act, 1956 and is engaged in the business of electrical, engineering supply as well as erection & commissioning and other related works. The defendant is a Public Limited Company and engaged in a business of electric equipment manufacturing such as electric meter equipment, switch gears, LED lighting, wires, cables etc. The defendant approached the plaintiff and showed interest in the products and made a deal with the plaintiff and requested to deliver the same on which defendant represented, assured and promised the plaintiff that payment shall be made against each invoice. On the request of defendant, the plaintiff delivered the products and Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 2 of 60 SISODIA 2026.03.23 15:44:09 +0530 raised invoices against the same on which no issues were raised regarding the quality and quantity of the material supplied under the said invoices and not only acknowledged the invoices but also accepted the material without objection. It was also stated that plaintiff shall act as a sub-contractor for BHEL on behalf of defendant as the defendant company is the contractor of BHEL to whom the work has been awarded by BHEL and the material as well as the service was given to BHEL by the plaintiff vide LOA:HPL/BHEL/SE&C/Obra/07092019/01 dated 07.09.2019, Supply PO No: 4180046257 dated 25.09.2019 Service WO No :
HPL/BHEL/SE&C/Obra/16102019/01 dated 16.10.2019. The material and services were to be provided to BHEL but it was specifically agreed between the parties that the payment was to be made by the defendant to the plaintiff. The defendant hopelessly and miserably failed to clear the payment in time and also failed to pay residual dues which has dragged the plaintiff company to the financial crisis.
3. It is stated that the plaintiff is regularly maintaining the statement of account in the ledger account under the name and style of M/s HPL Electric and Power Limited. The defendant not only acknowledged the invoices but accepted the material/services of plaintiff without any objection. It is stated that as per the ledger account of the plaintiff, a sum of Rs.
20,32,392/- is due against the defendant. The plaintiff issued Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 3 of 60 SISODIA 2026.03.23 15:44:09 +0530 legal notice to the defendant to pay the due amount. Despite receipt of notice, the defendant miserably failed to pay the outstanding amount. Thereafter the plaintiff received the reply to the legal notice with false and frivolous excuse of making the payment and again miserably failed to clear the outstanding amount. Finding no other alternative, plaintiff has filed the present suit against the defendant.
4. The defendant was duly served with the summons of the suit. Defendant contested the suit by filing the written statement. Defendant raised preliminary objections that this court lacks territorial jurisdiction to try the present suit as the plaintiff was subcontracted at Sonabhadra, Uttar Pradesh, the purchase orders placed by the defendant on the plaintiff was at Kundli, Haryana and the plaintiff approached the defendant at its Corporate Office in Noida and the contract was signed in Noida. It is further submitted that the tracking report and a few invoices are not legible and thus is an insufficient proof and that the Certificate U/s 65B filed along with the plaint is not as per the proper format under Order XI Rule 6(3) of the Commercial Courts Act, 2015. Thus, the electronic documents annexed in support of the Certificate under Section 65B holds no evidentiary value and cannot be relied upon. It is further submitted that the suit is not maintainable and is liable to be rejected under Order VII Rule 11 CPC.
On merits, the contents of the plaint have been denied.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 4 of 60 SISODIA 2026.03.23 15:44:09 +0530 The defendant has denied the averments made in the plaint and has submitted that the defendant had obtained a works contract from BHEL for 'RESTORATION OF OBRA "B" TPS UNIT 12 & 13, Package: Station Lighting System" at Sonabhadra site, Uttar Pradesh in August 2019 done by BHEL for UPRVUNL. This work was to be completed within two months. The said work was subcontracted to the plaintiff in two parts regarding the delivery of electrical materials except for supply of LED lights as per the letter of Award no.
HPL/BHEL/SE&C/Obra/07092019/01 dated 07.09.2019, and the second was regarding erection and Commission of Turnkey Packages as per the terms and conditions of the Letter of Award. The purchase Order for supply part of the contract was awarded by BHEL to HPL vide PO No. PW/PE/PG/ORP/P-110/19 dated 17.08.2019, and not by BHEL to Elmeco directly. The service part of the contract i.e. the Erection and Commissioning part (E&C) was awarded by BHEL to HPL vide letter of award dated 17.08.2019 with LOA no. PW/PE/PG/ORP/P-111/19, which was subcontracted to Elmeco. Thus, the plaintiff was liable to the defendant and not to BHEL. It is further stated that the LOA dated 07.09.2019 mentions that the contract is on back-to-back basis which means that the terms received from BHEL directly applies to the plaintiff, and that all terms and conditions would be as per the GCC i.e. the BG Clause, Risk and Cost Clause and the LD Clause. As per the LOA, the payment was to be done with Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 5 of 60 SISODIA 2026.03.23 15:44:09 +0530 respect to the work completed and approvals received with respect to the work done. It is stated that the payment with respect to the supply part was to be done as per the approved billing and further approval of the quality of materials and design documents and payment for the services part of the contract was to be done on pro-rata basis for work completed and on submission of protocol. It is further stated that the services part of the contract was left incomplete by the plaintiff and the defendant had to get it completed through a third party, for which the defendant got the design documents made by incurring additional cost of Rs. 2,83,200/- and the defendant vide email dated 02.01.2021 sought for the required documents and clearance certificate from the plaintiff but the same were not provided. It is further stated that the plaintiff did not submit the Bank Guarantee despite repeated requests through various communications and email dated 02.01.2021. It is further stated that after the invocation of Liquidated Damages clause and Risk and Cost Clause in the LOA, there is no amount due to the plaintiff from the defendant rather the defendant is entitled to recover the said amounts due from the plaintiff. It is further submitted that plaintiff has no direct connection with BHEL and the defendant was sub- contracted by BHEL which was further subcontracted to the plaintiff, thus making the plaintiff liable and answerable to the defendant only. It was because of the incomplete work left by the plaintiff that the defendant did not receive its contractual amount from BHEL. It is further Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 6 of 60 SISODIA 2026.03.23 15:44:09 +0530 stated that the contractor BHEL raised concerns regarding the DC Changeover function supplied by plaintiff not working due to some components being missing. Plaintiff had charged the defendant for the missing component however, the same was not included in the DC panel. The payment of services was to be done on the completion and perfection of the contract which has been failed by the plaintiff, due to which the payment to defendant was delayed by BHEL. It is further stated that various documents were sought by BHEL from the defendant to process the bills vide emails dated 15.12.2020, 19.12.2020, 22.12.2020 and the same was conveyed to the plaintiff but no action was taken by the plaintiff and the representative of the plaintiff further left the project site with certain original documents belonging to the defendant, submission of these documents were necessary in order to receive payments from BHEL.
5. It is further stated that since the plaintiff left the work incomplete, the work was further subcontracted to a third party, Unique Construction Company as per PO No. ELMECO/15012020/Obra/002 dated 15.01.2020 who was a subcontractor of the plaintiff. However, the said company informed the defendant that they would not be able to complete the work as their payments were not released by the plaintiff.
Unique Construction Company asked for due payments vide email dated 16.12.2020 upon which BHEL asked defendant to Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 7 of 60 SISODIA 2026.03.23 15:44:09 +0530 clear the dues. It is stated that the plaintiff failed to pay the said dues despite several reminders by the defendant. Thus, the defendant had to pay the subcontractor of the plaintiff. in order to ensure the completion of work and to obtain a No Dues Certificate from the Labour Contractor.
6. It is stated that the payments from defendant to plaintiff were released in proportion to the work completed as per the contract however, due to the fault of the plaintiff, the contract could not be fulfilled in the stipulated time period. The defendant is entitled to an amount of Rs. 27,14,265.52. Further, as per Clause 11.2 of the GCC the plaintiff was to provide Bank Guarantee @10% of the Order/Contract Value which comes to Rs. 6,71,095.20/-. It is further submitted that due to the non-
completion of work by the plaintiff, the Defendant has to pay Unique Construction Company a total of Rs. 4,20,920.20/-. It is further submitted that the contractor BHEL has invoked LD Clause on the terms and conditions and charged Rs. 11,90,000/- on the defendant vide invoice dated 30.06.2021. It is further submitted that the plaintiff is further entitled to claim a sum equivalent to ½% plus GST of the total contract price per week or part, subject to a maximum of 10% of the total contract price which comes to Rs. 9,03,595.60.
7. It is submitted that since the plaintiff left the work incomplete, the defendant is entitled to recover 5% i.e. Rs.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 8 of 60 SISODIA 2026.03.23 15:44:08 +0530 21,046.01/- under 'Risk and Cost.' The defendant is further entitled to recover the GST amount of Rs. 7,56,462.07/- for Supply and Rs. 3,12,955.64/- for Services part of the contract. The defendant further claims Rs. 2,83,200/- to get Design documents and an amount of Rs. 16,080/- towards the cost of lamp purchased by the plaintiff from the defendant under PO dated 03.11.2020.
8. It is submitted that the plaintiff has uploaded false, forged and fabricated invoices of lesser amount with the GST department due to which the Defendant could not claim the input credit and suffered huge losses. Various correspondences were made to the plaintiff to correct the GST issue however, no response was received. the difference of the GST component is Rs. 10,69,423.71/-. It is submitted that the plaintiff has not come with clean hands and the Legal notice dated 20.05.2021 is totally misconceived with baseless allegations, the defendant had replied to the said legal notice dated 05.07.2021 and stated correct facts. A prayer was made for dismissal of the suit.
9. Plaintiff filed replication to the WS of the defendant denying the contents of WS and reiterated that the facts as stated in the plaint.
PLEADINGS IN THE COUNTER CLAIM:
10. Along with WS, defendant has also filed counter claim for Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 9 of 60 SISODIA 2026.03.23 15:44:10 +0530 recovery of Rs. 27,14,265.52/- against the plaintiff/respondent.
11. In the counter claim, defendant has stated that defendant/counter claimant had obtained a works contract from BHEL for 'RESTORATION OF OBRA "B" TPS UNIT 12 & 13, Package: Station Lighting System" at Sonabhadra site, Uttar Pradesh in August 2019 which was being done by BHEL for UPRVUNL. The defendant/Counter claimant had sub- contracted the work to the plaintiff. The LOA dated 07.09.2019 clearly mentioned that the contract is on back-to-back basis which mean that the terms as applicable with BHEL apply to the plaintiff/clamant. It is clearly mentioned that all the terms and conditions to be as per GCC i.e. BG clause, Risk and cost clause and the LD clause would be referred to GCC. The LOA further mention the requirement of Design documents which were to be submitted by the plaintiff/claimant. The plaintiff/claimant defaulted in the providing the said design and the defendant/counter claimant had to procure the design documents incurring additional cost of Rs.2,83,200/-.
12. It is stated that the plaintiff/claimant placed a purchase order dated 03.11.2020 for the amount of Rs. 16,080/- on the defendant /counter claimant to get 9W Lamp and 18-20W Batten. The plaintiff/claimant requested the defendant/counter claimant to set off the said amount from the contractual dues of the plaintiff/claimant. It is stated that the representative of the Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 10 of 60 SISODIA 2026.03.23 15:44:09 +0530 plaintiff/claimant at the project site had received the original documents related to the completion of works done at various stages of the project. It is stated that after submission of the said documents, the bills of the defendant/counter claimant would be cleared by BHEL. The said documents were asked by BHEL from the defendant/counter claimant to process the bills. Despite repeated requests and mail, the plaintiff/claimant defaulted in providing the documents. It is stated that submission of all the documents was necessary for fulfilling the due protocol of BHEL to receive the payments due to which the payments of the defendant/counter claimant from BHEL was miserably delayed and is still outstanding.
13. It is stated that since the plaintiff/claimant left the project uncompleted the defendant/counter claimant had to further subcontract the leftover part of the contract to Unique Construction Company, NCL Thana Colony-104, Shakti Nagar, Dist. Sonabhadra (UP). The leftover work of the plaintiff/clamant was given for completion to Unique Construction Company by LOA HPL/BHEL/UC/Obra25012021 dated 25.01.2021 (wrongly mentioned as 25.01.2020 in the counter claim) as the work was stopped abruptly by the plaintiff at the project site and Unique Construction Company informed the defendant/Counter claimant that they will not be able to complete the work as their payments were not released by the plaintiff/claimant. The defendant/counter claimant asked the Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 11 of 60 SISODIA 2026.03.23 15:44:09 +0530 plaintiff to clear the dues of Unique Construction Company but no heed was paid by the plaintiff/claimant. Consequently, left with no other alternative the defendant/counter claimant being the principal employer had to pay to the sub-contractor of the plaintiff so that the work could be completed on time and 'No Dues certificate' obtained from the Labour Contractor. It is submitted that the Defendant/Counter-Claimant invoked the work of DC Function changeover to Unique construction Company for Rs. 1,41,600/-, who had to procure materials for rectification of defects in the DC Changeover. It is stated that due to abandonment of work by plaintiff, the defendant had to pay Rs. 4,20,920.20/- to Unique Construction Company as per quotation dated 24.01.2021 which includes the balance payment by the plaintiff and the charges for work of DC changeover.
14. It is stated that BHEL raised concerns regarding the non- working of the DC changeover function supplied for plaintiff due to some missing components. The plaintiff had charged for the missing components in its invoice but the same was not included in the DC panel.
15. It is further stated that due to non-performance of the contractual obligations on part of the plaintiff, the contractor BHEL had invoked the LD Clause upon the defendant/counterclaimant due to delay in completion of project which amounts to Rs. 11,90,000/- vide invoice dated Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 12 of 60 SISODIA 2026.03.23 15:44:10 +0530 30.06.2021. Thus, the defendant/counter-claimant is entitled to claim liquidated damages as per Clause 16 of GCC at a sum equivalent to ½% along with GST, which comes to Rs.
9,03,595.60/-
16. It is further submitted that the Plaintiff/counter-claimant has not deposited an amount of Rs. 7,56,462.07- for supply and Rs. 3,12,955.64/- for the service part of the contract. Further submitted that the plaintiff has uploaded false, forged and fabricated invoices of lesser amount with GST department to bring down the GST component. As a result, the Defendant/Counter-Claimant is unable to claim input credit and is facing losses. The difference of GST Component is Rs. 10,69,423.71/-
17. Plaintiff filed reply to the counter claim raising preliminary objections the counter-claim is frivolous and devoid of merit. The plaintiff has denied the averments of the defendant/counter-claimant. It is stated that the plaintiff was awarded work order for the supply, installation, testing and commissioning of the item for BHEL Restoration of OBRA "B" TPS Unit 12 &13 on a back-to-back basis.
It is stated that as per the LOA dated 07.09.2019, payment for supply was made by the plaintiff to BHEL via defendant. However, the defendant even despite receiving material/services to their satisfaction, failed to make payment for the invoices Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 13 of 60 SISODIA 2026.03.23 15:44:08 +0530 raised by plaintiff.
18. It is further stated that as per the terms of the contract, residual dues were to be paid for the work of erection and commissioning of 10% advance for site mobilization and 70% on pro-rate basis for the work completed, as per approved billing and 20% after performance. However, the defendant after receiving the invoices or work failed to release the payment amounting to Rs. 20,32,392/-.
19. It is stated that the defendant/counter-claimant issued work order for design documents to the plaintiff which was duly complied. The invoices were acknowledged by the defendant/counter-claimant and it was further cleared by BHEL and defendant already paid the amount of the design documents to the plaintiff on 14.11.2020.
20. It is stated that the plaintiff has admitted to have placed a purchase order dated 03.11.2020 for Rs. 16,080/- and out of this amount, Rs. 12,480/- is the defendant's contribution to project welfare expenses. Thus, the said amount will not be borne by the plaintiff. It is further stated that the defendant agreed to pay 10% mobilization and 70% monthly bill on a pro-rate basis and 20% project performance. However, the defendant failed to make the payment despite 100% work being completed. It is further stated that Unique Construction Co. is a sub-contractor of the plaintiff Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 14 of 60 SISODIA 2026.03.23 15:44:10 +0530 and their residual amount has been paid by the plaintiff. the amount paid by the defendant to Unique Construction Co. is a separate agreement altogether which does not impose any liability upon the plaintiff.
21. It is stated that that as per Clause 26.2(b) of GCC, the "Risk & Cost" Clause could only be invoked when the plaintiff/claimant would have failed to complete their part of the contract. Thus, the defendant is not entitled to invoke the said clause and seek Rs. 21,046.01/- from the plaintiff.
22. It is further stated that the DC Distribution Board was approved by the BHEL and DC panel has been inspected for material received certificate and material supplied has been installed, commissioned and had been put to use without any objection from BHEL. It is further stated that DC distribution design had been approved by BHEL at the design stage, BHEL has duly inspected the DC panel and issued the Dispatch Certificate.
23. It is stated that the plaintiff requested defendant several times for account reconciliation between the parties however the same was not conducted by the defendant. The input tax claimed by the defendant is only a counterblast to the recovery suit filed by the plaintiff.
On merits, the contents of the counter claim have been Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 15 of 60 SISODIA 2026.03.23 15:44:10 +0530 denied and a prayer has been made for dismissal of counter claim.
24. On the basis of pleadings of the parties, following issues were framed on 13.12.2023: -
1. Whether this court has no territorial jurisdiction to try and entertain the present suit? (OPD)
2. Whether the defendant is not liable to pay any amount to the plaintiff as the plaintiff failed to complete the project assigned to it and also failed to furnish the bank guarantee? (OPD)
3. Whether the plaintiff is entitled for recovery of Rs.20,32,392/- as prayed for? (OPP)
4. Whether the plaintiff is entitled for interest on the aforesaid amount, if so, at what rate and for which period?
(OPP)
5. Whether the defendant/counter claimant is entitled for recovery of Rs.27,14,265.52 from the plaintiff?
(OPD)
6. Whether the defendant/counter claimant is entitled for interest on the Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 16 of 60 SISODIA 2026.03.23 15:44:08 +0530 amount of counter claim, if so, at what rate and for which period? (OPD)
7. Relief.
25. The plaintiff examined Sh. Somenath Sarkar as PW-1 and tendered his affidavit as Ex.PW1/A. He has relied upon the following documents: -
S.No. Document Exhibit
1 Copy of Resolution of the Ex.PW-1/A
Board of Directors dated
16.08.2021
2 Copy of details of defendant Ex.PW-1/B
company extracted from the
Website of MCA
3 Copy of Letter of Award: Ex.PW-1/C-1
HPL/BHEL/SE&C/OBRA/
07092019/01 dated 23.09.2019
4 Copy of letter of award Ex.PW-1/C-2
HPL/BHEL/E&C/OBRA/ (colly)
16102019/02 dt. 16.10.2019
5 Copy of letter of award Ex.PW-1/C-3
HPL/BHEL/E&C/OBRA/
16102019/02 dt. 07.09.2019
6 True Copy of invoices i.e. Ex. PW-1/E
01,03,04,06,07 and 08 duly (colly)
acknowledged by the defendant
7 True copy of invoices i.e. 01 Ex.PW-1/F
and 02 raised by the defendant (Colly) to BHEL 8 True copy of ledger accounts Ex.PW-1/G with copy of the unpaid Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 17 of 60 SISODIA 2026.03.23 15:44:09 +0530 invoices
9 True copy of the summary of Mark H the GST returns of the complete sale as per account ledger 10 True copy of communication Mark I from plaintiff with request of payment settlement since November 2020 to April, 2021 11 True copy of legal notice dated Mark J 20.05.2021 sent by plaintiff to defendant along with postal receipt and tracking report 12 Copy of reply of the legal Mark K notice dated 20.05.2021 PW-1 was cross examined by counsel for defendant. Thereafter, PE was also closed vide order dated 25.01.2024.
26. Defendant has examined two witnesses in support of its case. Mr. Priyanshu Kandhway examined as DW-1 and tendered his affidavit by way of evidence as Ex. DW-1/A and relied upon the following documents: -
Sr. Document Exhibit
No.
1 Board of Resolution dated Ex.DW1/1
08.01.2020.
2 Copy of Letter of Award No. Ex.DW1/2
PW/PE/PG/ORP/P-111/19 dt.
17.08.2019 issued by BHEL to
defendant.
Digitally signed
ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 18 of 60 SISODIA 2026.03.23 15:44:10 +0530 3 Copy of Purchase Order bearing Ex.DW1/3 P.O.No. PW/PE/PG/ORP/P-110/ 19 dt. 17.08.2019.
4 Copy of letter of Award No. Ex.DW1/4 HPL/BHEL/SE&C/Obra/07092019/ 01 dt. 07.09.2019.
5 Extract of General Conditions of Ex.DW1/5 Contract (GCC) issued by BHEL to defendant.
6 Tues copy of e-mail dt. 02.01.2021 Ex.DW1/6 at 09.38PM sent by defendant to plaintiff.
7 Copy of Purchase Order No. Ex.DW1/7
ELMECO/03112020/01 dated
03.11.2020
8 Copy of e-mails dt. 02.12.2020 at Ex.DW1/8
10.43AM, 11.04AM and 11.16 AM. (colly) 9 True copies of e-mail dt. Ex.DW1/9 15.12.2020, 19.12.2020, 23.12.2020 (colly) and 07.01.2021.
10 Copies of letters dt. 08.01.2021, Ex.DW1/10 14.01.2021 and 06.02.2021 issued (colly) by defendant to plaintiff.
11 Copies of Letter of Award Ex.DW1/11 Reference No. HPL/BHEL/UC/ (colly) Obra25012021 dt. 25.01.2021.
12 Copy of Purchase Order No. Ex.DW1/12
4183000342 dt. 03.03.2021 issued
by defendant to Unique
Construction Company
13 True copies of e-mails dt. Ex.DW1/13
16.12.2020, 17.12.2020, (colly)
19.12.2020, 23.12.2020, 31.12.2020 and 22.05.2021 14 Copy of Delivery Challan No. Ex.DW1/14 Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 19 of 60 SISODIA 2026.03.23 15:44:08 +0530 HPL/BHEL/UC/27012021 dt.
27.01.2021.
15 Copy of work completion Ex.DW1/15 certificate dt. 15.06.2021 issued by BHEL to defendant.
16 Copy of Letter from labour working Ex.DW1/16 for plaintiff to BHEL dt.
27.10.2021.
17 Copy of Letter from labour working Ex.DW1/17 for Plaintiff to Labur Commissioner dt. 16.11.2021.
18 Copy of Letter from Labour Ex.DW1/18 Commissioner to UPRVUNL dt.
30.11.2021.
19 Copy of Letter from UPRVUNL to Ex.DW1/19 BHEL dt. 13.01.2022 20 Copy of Invoice No. UCC-05-2021 Ex.DW1/20 dt. 25.01.2021 for Rs. 1,41,600/-
21 Copy of Letter for pending Ex.DW1/21 payments dt. 10.11.2020 22 Copy of calculation sheet/ledger of Ex.DW1/22 total loss/dues filed by defendant as per terms of Letter of Award No. HPL/BHEL/SE&C/ Obra/07092019 dt. 07.09.2019.
23 Copies of invoices issued by Ex.DW1/23
plaintiff (colly)
24. Copies of RA Bills from site dt. Ex.DW1/24 05.11.2020 issued by BHEL to (colly) defendant 25 Copy of e-mail dt. 04.01.2021 at Ex.DW1/25 11.28AM sent by defendant to plaintiff.
26 True copy of email dt. 10.11.2020 Ex.DW1/26
at 11.32AM sent by defendant to
Digitally signed
ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 20 of 60 SISODIA 2026.03.23 15:44:10 +0530 plaintiff.
27 True copies of emails dt. Ex.DW1/27 25.09.2020 and 18.09.2021. (colly) 28 Original copy of Affidavit u/o XI Ex.DW1/28 Rule 6(3) of the Commercial Courts Act, 2015 dt. 19.11.2022.
29 Original copy of Affidavit u/o XI Ex.DW1/29 Rule 6(3) of the Commercial Courts Act, 2015 dt. 24.11.2022.
30 Original copy of Affidavit u/o XI Ex.DW1/30 Rule 6(3) of the Commercial Courts Act, 2015 dt. 14.08.2023.
27. DW-2 Sh. Ashwani Kumar Ex-Manager (design) at HPL Electric and Power and tendered his affidavit by way of evidence as Ex. DW-2/A. DW-1 and DW-2 were cross examined by counsel for plaintiff and thereafter, DE was closed vide order dated 08.02.2024.
28. I have heard Sh. Atul Kumar Singh for the plaintiff and Sh. Jogy Scaria for defendant and have perused the record carefully including the pleadings of the parties, evidence led by them and the written arguments filed on record.
29. Issue wise findings on the basis of evidence and arguments are as under: -
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 21 of 60 SISODIA 2026.03.23 15:44:09 +0530 ISSUE NO.1 Whether this court has no territorial jurisdiction to try and entertain the present suit? (OPD)
30. The onus of proving this issue has been cast on the defendant. Defendant in its WS has raised preliminary objection that the site for the work of which plaintiff was subcontracted was at Sonabhadra, U.P, the purchase orders were placed by the defendant to plaintiff at Kundali, Haryana and plaintiff had approached the defendant at its corporate office in Noida and the contract was signed in Noida. Therefore, this court has no territorial jurisdiction to try the present suit.
31. Counsel for the defendant has argued that the letter of award dated 17.08.2019 Ex. DW-1/2 would show that the site of work is situated at Sonabhdadra, U.P. The purchase order Ex. DW-1/7 was placed by the defendant to the plaintiff at Kundali Haryana. He argued that the letter of award dated 07.09.2019 issued by the defendant to the plaintiff was issued from its corporate office situated at Noida and the plaintiff approached and accepted the letter of award at Noida. The counter claim filed by the defendant would show that the address of the defendant is of Noida. Defendant does not reside or work for gain within the territorial jurisdiction of this court Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 22 of 60 SISODIA 2026.03.23 15:44:08 +0530 and no part of cause of action has arisen within the territorial jurisdiction of this court. Therefore, this court does not have territorial jurisdiction to try the present suit.
32. Per Contra, Counsel for plaintiff has argued that the purchase order dated 17.08.2019 Ex. DW-1/3 issued by BHEL to the defendant was received by the defendant at its registered office situated at 1/21, Asaf Ali Road, Delhi. The plaintiff also received the purchase order from the defendant at its Asaf Ali Road Office and the payment was made by the defendant from its bank situated at New Delhi to the plaintiff bank situated at Rajendra Nagar Delhi. He further argued that the purchase order Ex. DW-1/7 also contains jurisdiction clause which states the jurisdiction of New Delhi. He argued that once the plaintiff has received the payment from the defendant in its bank account situated at Rajendra Nagar New Delhi, it cannot be said that no part of cause of action has arisen within the territorial jurisdiction of this court. The counsel for the plaintiff has placed reliance on the judgment of M/s Auto Movers Vs Luminous Power Technologies Pvt. Ltd, 2021:DHC:2893 to argue that when the payments have been received by the plaintiff within the jurisdiction of this court, a part of cause of action has arisen within the territorial jurisdiction of this court and therefore, this court has territorial jurisdiction to try the present suit.
33. Section 20 of the CPC is the relevant provision which Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 23 of 60 SISODIA 2026.03.23 15:44:08 +0530 deals with the jurisdiction of the court. Section 20 CPC is reproduced herein below:-
"20. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
Explanation.--A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place."
34. From the perusal of Section 20, it is clear that the plaintiff can file suit against the defendant at the place where;
(i) Defendant voluntarily resides or works for gain or carries on business;
(ii) Where there are more than one defendants, either of them
Digitally signed
ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 24 of 60 SISODIA 2026.03.23 15:44:08 +0530 resides or works for gain or carries on business; &
(iii) Where the cause of action has arisen, either in whole or in part.
35. By the expression "cause of action" it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment of the court. In other words, a bundle of facts, which it is necessary for the plaintiff to prove in order to succeed in the suit.
It is settled law that "cause of action" consists of bundle of facts which give cause to enforce the legal inquiry for redress in a court of law. In restricted sense "cause of action"
means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In wider sense it means the necessary condition for the maintenance of the suit including not only the infraction of the right but also the infraction coupled with the right itself.
36. In the present case, defendant has not denied the fact that payments were made in the bank account of the plaintiff situated at Rajendra Nagar, New Delhi. Thus, part of cause of action has also arisen on account of payments made by the defendant into the bank account of the plaintiff. Even if it is assumed that Delhi was not expressly contracted place of payment, Delhi would still be a presumed place of payment because of the general rule in the absence of the contract to the Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 25 of 60 SISODIA 2026.03.23 15:44:10 +0530 contrary, a debtor is bound to find the creditor for making the payment-the place of payment is where the creditor resides. Reliance in this regard can be placed on the judgment of Hon'ble High Court of Delhi in Shradha Wassan & Ors. Vs. Mr. Anil Goel & Anr., 2009 SCC Online Del 1285.
37. Hence, in view of the aforesaid discussion, I am of the considered opinion that this court has territorial jurisdiction to entertain and try the present suit as part of cause of action has arisen within the jurisdiction of this court on account of payment made by the defendant in the bank account of the plaintiff situated within the jurisdiction of this court. The issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE No.2 Whether the defendant is not liable to pay any amount to the plaintiff as the plaintiff failed to complete the project assigned to it and also failed to furnish the bank guarantee? (OPD)
38. The onus of proving this issue was cast on the defendant.
39. The admitted case of the parties is that the defendant was awarded a contract by BHEL for restoration of OBRA B TPS Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 26 of 60 SISODIA 2026.03.23 15:44:10 +0530 UNIT 12&13 vide letter of award dated 17.08.2019. The contract consisted of two parts i.e. the supply of goods and erection and commissioning. The plaintiff was appointed as a Sub Contractor by the defendant vide letter of award dated 07.09.2019, supply purchase order dated 25.09.2019 and service work order dated 16.10.2019 on back-to-back basis.
The case of the plaintiff is that the plaintiff supplied the goods which were accepted by the defendant without any objection and plaintiff has also completed the work but defendant failed to make the payment and payment of Rs. 20,32,932/- is due and outstanding against the defendant. Per Contra, the case of the defendant is that plaintiff stopped the work abruptly in between the project and defendant had to appoint another agency to get the work completed. The defendant further claimed entitlement to recover Rs. 27,14,265.52 from the plaintiff.
40. Defendant has claimed that it is not liable to pay any amount to the plaintiff as it failed to complete the project assigned and also failed to furnish the bank guarantee in terms of GCC.
41. Counsel for the plaintiff has argued that the plaintiff is entitled for the amount claimed by it as defendant has already received the work completion certificate issued by BHEL on 15.06.2021 which has been proved by the defendant as Ex. DW-1/15. It was argued that as per this certificate the work Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 27 of 60 SISODIA 2026.03.23 15:44:09 +0530 was commenced on 29.11.2019 and all the erection and commencing work was completed by 30.11.2020 and further DC change over scheme for station lighting was successfully implemented and commissioned on 01.02.2021. It was argued that defendant has also received the entire payment from BHEL and now it cannot deny the outstanding payment of the plaintiff on the ground that the plaintiff left the work incomplete. It was also argued that the plaintiff was not liable to furnish the bank guarantee as the total value of the work of plaintiff was less than Rs. 25 lakhs.
42. Per Contra, Counsel for defendant has argued that defendant had to appoint another agency i.e. M/s Unique Construction Company vide letter of award dated 25.01.2021 Ex. DW-1/11. It was further argued that the defendant suffered losses due to delay in completion of work and the plaintiff also did not furnish the bank guarantee as required under clause 11 of the GCC.
43. A bare perusal of Clause 11.1 of the GCC would show that no bank guarantee is required where the original order / contract value is up to Rs. 25 lakhs (excluding taxes, duties and freight). Clause 11.6 provides that equivalent amount shall be recovered from the payment due to the seller /contractor before releasing any payment in the absence of a valid bank guarantee.Digitally signed
ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 28 of 60 SISODIA 2026.03.23 15:44:08 +0530
44. Further, the copy of the work order dated 16.10.2019 Ex.
PW-1/C-2 filed by the plaintiff would show that the total value of the work order was Rs. 22,15,235.78 which is below Rs. 25 lakhs as provided in Clause 11.1 of the GCC and therefore, I am of the considered opinion that no bank guarantee was required to be furnished by the plaintiff. Not only this even DW-2 Ashwani Kumar in his cross-examination has also submitted that plaintiff was not required to provide bank guarantee to BHEL. In my considered opinion, the defendant should have insisted with the plaintiff to provide bank guarantee, if it was required immediately after the plaintiff had accepted the contract. However, once the defendant did not insist for the same, now defendant cannot withhold the payment of the plaintiff on the ground that plaintiff had not submitted the bank guarantee, more particularly when DW-1 Priyanshu Kandhway in his cross-examination has admitted that there is no liability with the BHEL in the present contract and he was not even aware about the amount of bank guarantee furnished by the defendant and whether the bank guarantee had been returned after the completion of project or not but admitted that tenure of bank guarantee had already expired. The purpose of obtaining the bank guarantee was for the performance of the contract and once the contract has already been completed/performed, the non-furnishing of bank guarantee by the plaintiff to the defendant loses its significance.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 29 of 60 SISODIA 2026.03.23 15:44:09 +0530
45. As regards the argument of the defendant that plaintiff left the work incomplete and defendant had to engage another agency i.e. Unique Construction Company to complete the work, perusal of the work completion certificate issued by BHEL to the defendant Ex. DW-1/15 would show that the work of supply and erection and commissioning work was completed by 30.11.2020 and only the DC changes scheme for station lighting package was pending which was completed and commissioned on 01.02.2021. It is also pertinent to note here that M/s Unique Construction Company was awarded the contract by defendant vide letter of award dated 25.01.2021 Ex. DW-1/11 for the DC change over scheme for station lighting package only for a sum of Rs. 1,13,280/- which clearly establishes that the erection and commissioning work had already been completed by the plaintiff and only the work of DC change over scheme was pending. It is not even the case of defendant that Unique Construction Company was also awarded some other part of the contract relating to erection and commissioning.
46. Therefore, in view of the aforesaid discussion, I am of the considered opinion that defendant has failed to discharge the onus cast on it. The issue is accordingly decided against the defendant and in favour of the plaintiff.
ISSUE NO. 3:
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 30 of 60 SISODIA 2026.03.23 15:44:09 +0530 Whether the plaintiff is entitled for recovery of Rs.20,32,392/- as prayed for? (OPP)
47. The onus of proving this issue has been cast on the plaintiff. The plaintiff has filed the present suit for recovery of Rs. 20,32,392/- against the defendant. Admittedly, the contract between plaintiff and defendant consisted of two parts i.e. supply of goods and erection and commissioning. The claim of the plaintiff can be bifurcated as under: -
S. No. Bifurcation of Claim Amount (in Rs.)
1. Total amount pending 61277.17 against Supply of goods
2. Total amount pending 282982.00 against Freight charges
3. Total amount pending 1688133.36 in Erection and Commissioning TOTAL Rs. 20,32,392.53/-
Now I shall deal with each claim of the plaintiff separately.
(I) Claim of Rs. 61,277.17 pending against Supply of Goods
48. The plaintiff was awarded the contract by the defendant vide letter of award dated 07.09.2019 Ex. PW-1/C-3 (colly). Further, the plaintiff was awarded the purchase order dated 25.09.2019 for supply of the goods as per the specification mentioned therein amounting to Rs. 68,81,952.89 paisa. As per Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 31 of 60 SISODIA 2026.03.23 15:44:09 +0530 the terms of the letter of award Ex. PW-1/C-3, tax, duties and freight were exclusive of the total basic price. Counsel for the plaintiff has argued that plaintiff has proved on record the following invoices relating to supply of the goods: -
S. Invoice No. Date Amount
No. (Rs)
1. ELE/2019-20/09 15.10.2019 926536.00
2. ELE/2019-20/10 15.10.2019 357540.00
3. ELE/2019-20/11 16.10.2019 83632.50
4. ELE/2019-20/12 16.10.2019 51920.00
5. ELE/2019-20/13 23.10.2019 68214.58
6. ELE/2019-20/14 23.10.2019 432529.00
7. ELE/2019-20/16 25.10.2019 186765.98
8. ELE/2019-20/17 25.10.2019 80153.39
9. ELE/2019-20/18 25.10.2019 932200.00
10. ELE/2019-20/19 25.10.2019 54327.67
11. ELE/2019-20/20 25.10.2019 68817.60
12. ELE/2019-20/22 09.11.2019 376585.20
13. ELE/2019-20/23 16.11.2019 1608255.84
A
14. ELE/2019- 16.11.2019 526280.00
20/23/B
15. ELE/2019-20/24 09.12.2019 93668.40
16. ELE/2019-20/25 09.12.2019 32783.94
17. ELE/2019-20/26 11.12.2019 120430.80
18. ELE/2019-20/27 11.12.2019 40076.69
19. ELE/2019-20/28 11.12.2019 6369.45
20. ELE/2019-20/30 21.12.2019 238950.00
21. ELE/2019-20/31 21.12.2019 1533.10
22. ELE/2019-20/32 21.12.2019 147500.00
23. ELE/2019-20/33 31.12.2019 137635.20
24. ELE/2019-20/34 16.01.2020 37085.04
25. ELE/2019-20/35 16.01.2020 27819.51
26. ELE/2019-20/36 16.01.2020 22939.20
27. ELE/2020-21/11 29.10.2020 45496.08
Digitally signed
ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 32 of 60 SISODIA 2026.03.23 15:44:10 +0530 TOTAL: ₹67,06,045.17 He further argued that the plaintiff has received a sum of Rs. 66,44,768/- from the defendant which is duly reflected in the ledger account Ex.PW-1/G and a sum of Rs. 61,277.17 is due and outstanding against the defendant towards supply of goods.
49. Counsel for the defendant has argued that the plaintiff did not complete the work and stopped the work abruptly. It was further argued that there are differences in the amounts of invoices and date as per the ledger account and GST account and no work completion certificate has been obtained by the plaintiff. It was further argued that the plaintiff also failed to provide the designed documents and further the defendant had to make payment to the Unique Construction Company for the balance payment. The plaintiff also did not supply the documents demanded vide emails dated 02.01.2021 Ex.
DW-1/6, email dated 19.12.2020 Ex. DW-1/9 and the ledger of the plaintiff and GST portal are not matching.
50. A bare perusal of the cross-examination of PW-1 would show that PW-1 in his cross-examination has denied the suggestion that plaintiff did not submit the supporting documents along with the invoices or in support of claim of original designed documents and admitted that defendant asked for submitting the documents along with the invoices for making the payment and volunteered that plaintiff had Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 33 of 60 SISODIA 2026.03.23 15:44:08 +0530 submitted the documents as requested by the defendant. PW-1 also deposed that plaintiff had completed the work assigned to it as per letter of award Ex. PW-1/C-3 and had also placed on record all the invoices raised against defendant for supporting the present claim. PW-1 has admitted that there is mismatch in the invoice number, date and amount as mentioned in the ledger Ex. PW-1/G and GST portal Mark 'H' but claimed that plaintiff had uploaded all the amount as per the invoices raised by it. It was denied that the ledger account filed by the plaintiff is false, inflated and fabricated document. He also deposed that there is no other document apart from the ledger to show that defendant had made part payment towards the invoices raised by the plaintiff.
51. It is pertinent to note here that even though defendant has claimed that the invoices are inflated and fabricated but no evidence has been led by the defendant to show as to which of the invoices were fabricated by the plaintiff or which of the invoices contained inflated amount. Defendant has not examined any witness to show that the invoices filed by the plaintiff are forged and fabricated nor defendant has disputed the payment of Rs. 66,44,768/- against the supply invoices. The ledger account Ex. PW-1/G filed by the plaintiff has duly been acknowledged by the defendant company. Therefore, there is no reason to disbelieve the ledger account Ex. PW-1/G. However, a careful perusal of the ledger account Ex. PW-1/G Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 34 of 60 SISODIA 2026.03.23 15:44:09 +0530 and the GST return Mark 'H' would show that the invoice no. ELE/2020-21/11 of Rs. 45,496/- is not shown in the GSTR-1. The plaintiff has not examined any witness from the GST department to show that GST was paid on this invoice and this invoice was uploaded on the GST portal. Hence, in my considered opinion the plaintiff is not entitled to claim the amount of this invoice.
Accordingly, the plaintiff has only proved its claim for sum of Rs. 15,781/- (Rs. 61,277/ - Rs. 45,496/-) against the supply of the goods. Thus, the plaintiff is entitled to recover only an amount of Rs. 15,781/- from the defendant against supply of goods.
(II) Claim of Rs. 2,82,982/- pending against Freight charges
52. The plaintiff has claimed a sum of Rs. 2,82,982/- from the defendant towards pending freight charges. Counsel for plaintiff has argued that the plaintiff had supplied the goods to the defendant against the following invoices: -
Sr. Invoice Number Amount (Rs.)
No.
1 ELE/2019-20/01 238000.00
2 ELE/2019-20/02 44982.00
Total Rs. 2,82,982/-
Digitally signed
ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 35 of 60 SISODIA 2026.03.23 15:44:08 +0530
53. It has been argued that the plaintiff has proved the invoices as Ex. PW-1/E (colly) which has been duly acknowledged by the AR of the defendant. It was further argued that plaintiff has also proved the ledger account Ex. Pw-1/G showing the outstanding amount against the freight. He argued that as per the letter of award Ex. PW-1/C-3 dated 07.09.2019, the freight was exclusive of the sale price.
54. Counsel for the defendant has denied the claim of the plaintiff and has submitted that plaintiff is not entitled for any payment as it failed to complete the work and obtain the completion certificate.
55. A perusal of admission/denial of documents filed by the defendant would show that defendant has admitted invoice no. ELE/CL/2019-20/01 dated 09.01.2020 amounting to Rs. 2,38,000/- whereas the defendant has denied invoice no. ELE/CL/2019-20/01 dated 09.12.2019 amounting to Rs. 1,88,000/-. Perusal of the record would also show that although in the ledger account Ex. PW-1/G plaintiff has mentioned second freight invoice as ELE/CL/2019-20/02 dated 20.01.2020 for Rs. 44,982/-. No such invoice is filed by the plaintiff on record nor the said invoice has been proved by the plaintiff by summoning any witness.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 36 of 60 SISODIA 2026.03.23 15:44:09 +0530 Hence, I am of the considered opinion that plaintiff is only entitled for the freight amount of Rs. 2,38,000/- from the defendant.
(III) Claim of Rs. 16,88,133.36 against Erection and Commissioning
56. The plaintiff has claimed a sum of Rs. 16,88,133.36 against the work of erection and commissioning from the defendant on the basis of following invoices: -
Sr. Invoice No. Dated Amount (Rs.)
No.
1 ELE/2019-20/37 20.01.2020 401535.78
2 ELE/2019-20/39 08.02.2020 440559.45
3 ELE/2020-21/03 26.09.2020 283932.61
4 ELE/2020-21/04 12.10.2020 226569.00
5 ELE/2020-21/06 30.10.2020 187764.97
6 ELE/2020-21/07 06.11.2020 231890.80
7 ELE/2020-21/08 12.11.2020 184697.56
8 ELE/2020-21/10 30.11.2020 242706.24
9 ELE/2020-21/12 26.11.2020 320571.89
25,20,288.30
Total
57. Counsel for the plaintiff has argued that plaintiff has proved the invoices in support of its claim as Ex.PW-1/E (colly) and the copy of ledger account along with copy of unpaid invoices has been proved as Ex. PW-1/G. It has been argued that the plaintiff has also proved the copy of the communication with request to make the payment from November, 2020 to April, 2021 as Mark 'I' and the legal demand notice as Mark 'J.' It was argued that the plaintiff had completed the work of Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 37 of 60 SISODIA 2026.03.23 15:44:08 +0530 erection and commissioning as per the letter of award Ex. PW-1/C-3(colly). It was further argued that the defendant had paid a sum of Rs. 8,32,095/- to the plaintiff which is duly reflected in the ledger statement Ex.PW-1/G which has been duly acknowledged by the authorized representative of the defendant. It was argued that plaintiff is entitled for the balance amount of Rs. 16,88,133.36 from the defendant.
58. Per Contra, Counsel for the defendant has argued on the lines of the defence taken by the defendant and it has been submitted that the invoices filed by the plaintiff are incorrect and the plaintiff abruptly stopped the work in between due to which defendant suffered losses and it had to engage another agency i.e. Unique Construction Company to complete the work. It was further argued that plaintiff has also failed to furnish the bank guarantee and lesser GST amount has been paid in the invoices due to which defendant suffered losses.
59. As already held in issue no. 1, non-furnishing bank guarantee by the plaintiff cannot be a ground to deny the payment. Similarly, the argument advanced by the defendant that plaintiff left the work incomplete appears to be incorrect. The completion certificate issued by BHEL Ex. DW-1/15 shows that the work was commenced on 29.11.2019 and all the erection and commencing work was completed by 30.11.2020 and further DC change over scheme for station lighting was Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 38 of 60 SISODIA 2026.03.23 15:44:10 +0530 successfully implemented and commissioned on 01.02.2021. Further, the letter of award dated 25.01.2021 Ex. DW-1/11 issued by the defendant in favour of M/s Unique Construction Company would show that the same had been issued only for the DC change over scheme for station lighting package only for a sum of Rs. 1,13,280/- which clearly establishes that the erection and commissioning work had already been completed by the plaintiff and only the work of DC change over scheme was pending. The defendant also failed to prove that it had engaged some other agency for the purpose of completion of erection and commissioning work left incomplete by the plaintiff. There is no documentary evidence on record to substantiate the defence raised by the defendant as the work of erection and commissioning had already been completed by the plaintiff before defendant engaged M/s Unique Construction Company as per the completion certificate Ex.DW-1/15 issued by BHEL.
60. The argument advanced by the defendant that plaintiff has failed to provide the supporting documents along with the invoices and design documents also appears to be incorrect as DW-1 Priyanshu Kandhway in his cross-examination has admitted that there is no liability with BHEL in this contract. DW-2 Ashwani Kumar in his cross examination deposed that the invoices were returned to the plaintiff through speed post after plaintiff failed to make up for the deficient documents Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 39 of 60 SISODIA 2026.03.23 15:44:09 +0530 despite reminders but defendant has not placed on record the original speed post envelops which were returned to the defendant and admitted that original invoices are still in possession of defendant. This testimony of DW-2 shows that the plaintiff had submitted the invoices to the defendant for the payment but defendant failed to make the payment on the pretext of shortage of documents. However, once the defendant has received the entire payment from BHEL, there is no reason why the plaintiff should be denied the payment for the work done by it.
61. A careful comparison of the invoices filed by the plaintiff with the GST returns would show that invoice no. ELE/2020- 21/03 dated 26.09.2020 for Rs. 2,83,932.61 and invoice no. ELE/2020-21/08 dated 12.11.2020 for a sum of Rs. 1,84,697.56 are not reflected in the GSTR returns Mark H which create a doubt whether these invoices were actually supplied by the plaintiff to the defendant after uploading them on the GST portal. The plaintiff has also not examined any other witness from the GST department to prove that these invoices were uploaded on the GST portal and were duly supplied to the defendant. Hence, I am of the considered opinion that plaintiff has failed to prove these two invoices and is not entitled for the amounts claimed in these invoices.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 40 of 60 SISODIA 2026.03.23 15:44:09 +0530
62. In view of the aforesaid discussion, I am of the considered opinion that the plaintiff is only entitled to recover a sum of Rs. 12,19,503/- (i.e. after deducting the amount of Rs. 2,83,932.61 and Rs. 1,84,697.56/- from the total claim of Rs. 16,88,133.36)
63. In view of the aforesaid discussion, issue no.3 is accordingly decided in favour of plaintiff and against the defendant and plaintiff is held to be entitled to recover a sum of Rs. 14,73,284/- from the defendant under the following heads: -
(i)Against supply of goods - Rs. 15,781/-
(ii) Against freight - Rs. 2,38,000/-
(iii) Against erection & Commissioning work - Rs. 12,19,503/-
Total Rs. 14,73,284/-ISSUE No. 4
Whether the plaintiff is entitled for interest on the aforesaid amount, if so, at what rate and for which period?
(OPP)
64. Plaintiff has claimed interest @ 18% per annum from the date of filing of the suit till its realization on the ground that dispute between the parties is a commercial dispute.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 41 of 60 SISODIA 2026.03.23 15:44:08 +0530
65. However, there is no agreement between the parties regarding rate of interest payable on delayed payments.
66. In Central Bank of India Vs Ravindra & Ors., (2002) 1 SCC 367, it was held that an award of interest, pendente lite and post decree is discretionary with the courts as it is essentially governed by Section 34 of the CPC de-hors the contract.
67. Having regard to the lending rate of interest of the bank for the commercial transactions, this court is of the view that interest @10% per annum is reasonable and would serve the ends of restitutive justice. In the circumstances, plaintiff is held entitled to interest @ 10% per annum from the date of filing of the suit till its realization. Issue is accordingly decided in favour of the plaintiff and against the defendant.
ISSUE No. 5Whether the defendant/counter claimant is entitled for recovery of Rs.27,14,265.52 from the plaintiff?
(OPD)
68. The onus of proving this issue has been placed on the defendant/counter claimant. Defendant has filed counter claim for recovery of Rs. 27,14,265.52 under the following heads: -
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 42 of 60 SISODIA 2026.03.23 15:44:10 +0530 S.No Head Amount (Rs.) 1 Additional cost 283200.00 incurred to procure design documents 2 Cost of supply of 9W 16080.00 Lamp and 18-20W Batten to the plaintiff 3 Risk and cost clause 21046.01 @ 5% 4 DC change over 141600.00 function awarded to M/s. Unique Construction Co.
5 Balance payment 279320.20 made to M/s. Unique Construction Co.on behalf of plaintiff 6 Liquidated damages 903595.60 against the plaintiff @ 10% of contract price 7 Deficient GST 756468.07 amount deposited by the plaintiff with GST department for supply of goods 8 Deficient GST 312955.64 amount deposited by the plaintiff with GST department for the work of erection and commissioning Total dues 27,14,265.52 Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 43 of 60 SISODIA 2026.03.23 15:44:09 +0530
69. I shall now deal with the claim of the defendant/counter claimant under each head separately.
I. Additional cost of Rs. 2,83,200/- incurred to procure design documents by the defendant/counter claimant.
70. Counsel for the Defendant/counter claimant has has argued that letter of award mentioned the requirement of design documents which were to be submitted by plaintiff and the plaintiff defaulted in providing the said design and defendant had to procure the same incurring additional cost of Rs. 2,83,200/- and Risk and cost clause @ 5%. He further argued that PW-1 Somenath Sarkar in his cross- examination dated 24.01.2024 deposed that original design documents were submitted to the defendant in electronic form and denied the suggestion that plaintiff did not submit supporting documents to substantiate the claim of submitting original design documents. It was argued that the plaintiff stopped the work in between and failed to supply the design documents and defendant had to incur additional cost in obtaining the design documents.
71. Per contra, counsel for the plaintiff has argued that defendant had miserably failed to place on record any documentary evidence showing that it had obtained design documents from some other party or that it had incurred additional cost in doing so. He argued that the original design Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 44 of 60 SISODIA 2026.03.23 15:44:09 +0530 documents were submitted by the plaintiff and defendant even paid a sum of Rs. 2,83,200/- to the plaintiff which is also reflected in the ledger account of the plaintiff Ex.PW-1/G which has not been disputed by the defendant.
72. A perusal of testimony of PW-1 would show that he has denied the suggestion that defendant had to arrange the design documents from outside incurring additional expenses of Rs. 2,83,200/-. On the other hand, DW-2 Ashwani Kumar in his cross- examination dated 08.02.2024 admitted that defendant had made payment of around Rs. 2,83,200/- to the plaintiff company for design and engineering. He further deposed that plaintiff had only supplied the initial design engineering document and had received the payment but the plaintiff did not provide as-built drawing and engineering document despite demand by the defendant. However, DW-2 could not recall the name of third party which was engaged by the defendant for completion of design and engineering document. DW-2 further deposed that no document has been placed on record by the defendant to show who was a third party engaged by the defendant for this purpose and third party had provided as-built design to the defendant. DW-2 deposed that the copies of the said as-built design provided by third party have not been placed on record nor the document regarding payment to the third party was placed on record. DW-2 also could not tell how much payment was made to the third party.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 45 of 60 SISODIA 2026.03.23 15:44:10 +0530
73. Thus, from the testimony of DW-2, it is clear that defendant has failed to substantiate its claim regarding incurring of additional expenditure in obtaining the design document from the third party. The onus was upon the defendant to prove by way of cogent evidence that it had incurred the expenses in procuring as-built design document from third party. However, defendant has failed to place any document in support of its claim. Defendant has even failed to disclose the name of the third party from whom the design document was obtained. No documentary evidence in the form of invoice or payment receipt has been placed on record by the defendant to show that it actually incurred the expenses of Rs.2,83,200/-. Defendant did not even examine any witness from the said third party to substantiate its claim. Therefore, I am of the considered opinion that defendant/counter-claimant is not entitled to claim the amount of Rs. 2,83,200/-.
II. Cost of supply of 9W Lamp and 18-20W Batten to the plaintiff amounting to Rs. 16,080/-.
74. Counsel for the defendant has argued that plaintiff had placed a purchase order dated 03.11.2020 to the defendant to get 9W Lamp and 18-20W Batten and requested the defendant to set off the amount from the contractual dues of the plaintiff. It is stated that the defendant provided the Lamp and the Batten to Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 46 of 60 SISODIA 2026.03.23 15:44:09 +0530 the plaintiff which amounting to Rs. 16,080/-. It was argued that defendant has examined DW-1 Mr. Priyanshu Kandhway, who has proved the purchase order dated 03.11.2020 placed by the plaintiff as Ex. DW-1/7. It was argued that PW-1 Somenath Sarkar in his cross-examination deposed that he could not recall if the plaintiff had purchased any products from the defendant company and denied the suggestion that plaintiff had purchased the products from defendant company for an amount of Rs. 16,080/- for which plaintiff failed to make the payment and volunteered that this purchase was not made for the present transaction and business.
75. Counsel for the plaintiff has also denied the claim of the defendant/counter-claimant. However, perusal of the record would show that the purchase order dated 03.11.2020 Ex. DW-1/7 has been admitted by the plaintiff in its Affidavit of A/D of documents. This clearly establishes that plaintiff had placed order for purchase of 9W Lamp and 18-20W Batten from the defendant. Even in para 5 of the reply to the counter-claim, plaintiff has admitted the aforesaid purchase from the defendant but it was claimed that out of Rs. 16,080/- an amount of Rs. 12,480/- was not to be paid by the plaintiff, as it was defendant's part of contribution to the project welfare expenses. However, no evidence in this regard has been adduced by the plaintiff. Therefore, once it is established that plaintiff had purchased the Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 47 of 60 SISODIA 2026.03.23 15:44:10 +0530 goods from the defendant, it is liable to pay the amount for the same.
In view of the aforesaid discussion, I am of the considered opinion that defendant is entitled to recover a sum of Rs. 16,080/- from the plaintiff towards the cost of Lamp and Batten.
III. Risk and cost clause @ 5% amounting to Rs. 21,046,01.
76. Counsel for the defendant has argued that defendant has claimed this amount as per the purchase order and letter of award dated 07.09.2019 Ex.PW-1/C-3 and purchase order dated 25.09.2019 and amended terms of GCC. It was argued that the defendant is entitled to recover a sum of Rs. 21,046.01 as per Clause 26.2 and the defendant vide email dated 02.01.2021 and 07.01.2021 Ex. DW-1/6 and Ex. DW-1/9 respectively intimated the plaintiff about the same.
77. Counsel for the plaintiff has argued that plaintiff had already supplied the documents to the defendant and there was no occasion for invoking risk and cost clause on the plaintiff.
78. A bare perusal of the emails dated 02.01.2021 Ex. DW-1/6 would show that defendant had demanded certain documents from the plaintiff and the risk and cost clause were not invoked. Even as per email Ex. DW-1/9 dated 07.01.2021, Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 48 of 60 SISODIA 2026.03.23 15:44:09 +0530 it has been stated that defendant had no option but to go in risk and cost to close the contract with the customer. However, there is no unequivocal invocation of risk and cost clause by the defendant from the plaintiff and no amount in this regard has been demanded in either of these two emails. DW-2 Ashwani Kumar in his cross-examination has also not deposed anything regarding invocation of risk and cost clause by the defendant in his affidavit Ex. DW-2/A and has merely reiterated the aforesaid emails. Therefore, in the absence of a clearcut invocation of risk and cost clause and demand of the same from the plaintiff, it cannot be said that defendant is entitled for recovery of this amount. Even otherwise, defendant has failed to show as to what loss was suffered by it due to non- supply of goods/leaving incomplete work by the plaintiff before invoking the risk and cost clause. Rather, as noted in the foregoing paras, the defendant even failed to produce any document as to how much work was left incomplete by the plaintiff and which other agency was engaged by the defendant for completion of the said work. Therefore, in my considered opinion, defendant is not entitled to recover the sum of Rs. 21,046.01 against risk and cost clause from the plaintiff.
IV. DC change over function awarded to M/s. Unique Construction Co amounting to Rs. 1,41,600/-.Digitally signed
ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 49 of 60 SISODIA 2026.03.23 15:44:09 +0530
79. Counsel for the defendant has argued that defendant had appointed Unique Construction Co. by letter of award dated 25.01.2021 DW-1/11. The defendant had to spent a sum of Rs. 1,41,600/- for the work of DC change over function and M/s. Unique Construction Co. had to procure material for rectification of the defects in the DC change over vide challan dated 27.01.2021 Ex. DW-1/14. It was argued that plaintiff has not produced any invoice showing the completion of the said work and therefore, the defendant had to pay to M/s. Unique Construction Co and is entitled to recover the said amount from the plaintiff.
80. Perusal of the cross-examination of PW-1 Somenath Sarkar dated 25.01.2024 would show that although it was deposed that plaintiff had made payment to Unique Construction Co. in relation to the same project. He could not recall if plaintiff had placed any supporting documents on record. PW-1 denied the suggestion that Unique Construction Co. came into picture as plaintiff did not complete the work assigned to it and volunteered that Unique Construction Co. was not a sub-contractor but a labour supplier. PW-1 also admitted that defendant had sent an email to the plaintiff for change of DC circuit modification but volunteered that these emails were received after the plaintiff had already completed its contractual obligation.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 50 of 60 SISODIA 2026.03.23 15:44:09 +0530
81. Thus, from the testimony of PW-1, it is clearly established that the work of DC change-over was done by the Unique Construction Co. as plaintiff had already left the site. Therefore, defendant is entitled to recover the amount of Rs. 1,41,600/- from the plaintiff, Rs. 1,13,280/- being the cost of the goods as reflected in the delivery challan Ex. DW-1/14 and Rs. 28,320/- being the erection and commissioning charges of the aforesaid site requirement.
V. Balance payment made to M/s. Unique Construction Co. on behalf of plaintiff amounting to Rs. 2,79,320/-.
82. Counsel for the defendant has argued that defendant had to pay Unique Construction Co. a total amount of Rs. 4,20,920.20 which included the balance payment of Rs. 2,79,320.20 which was payable by the plaintiff and Rs. 1,41,600/- towards charges for the work of DC change over completed by them. It was argued that Unique Construction Co. agreed to complete the work only on the payments of the previous outstanding balance amount which was not paid by the plaintiff. It was argued that the plaintiff is liable to reimburse this amount to the defendant.
83. However, counsel for the plaintiff has denied any such liability and has submitted that defendant has not placed on record any documentary evidence to establish that it had paid Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 51 of 60 SISODIA 2026.03.23 15:44:08 +0530 sum of Rs. 2,79,320.20 to M/s. Unique Construction Co. It was argued that the defendant has failed to examine any witness from Unique Construction Co. to substantiate its claim.
84. A careful perusal of the record would show that DW-2 Ashwani Kumar during his cross-examination dated 08.02.2024 deposed that defendant has placed on record the calculation ledger Ex. DW-1/22 showing the payment of Rs. 1,41,600/- to Unique Construction Co. He categorically deposed that no other payment has been made to the Unique Construction Co. by the defendant apart from the aforementioned payment. He further deposed that Unique Construction Co. had not given 'no dues certificate' to the defendant as plaintiff had not paid the sum of Rs. 2,50,000/- which it was required to pay.
85. The aforesaid testimony of DW-2 demolishes the case of the defendant for recovery of Rs. 2,79,320.20 against the defendant. Had the defendant made the payment of this amount to Unique Construction Co., there was no reason why Unique Construction Company would not have given a no dues certificate to the defendant in token of receipt of entire outstanding amount. Defendant also failed to examine any witness from Unique Construction Company to substantiate its claim that it had paid Rs. 2,79,320.20 to Unique Construction Company which was payable by the plaintiff. Therefore, in my Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 52 of 60 SISODIA 2026.03.23 15:44:08 +0530 considered opinion, defendant is not entitled to recover this amount from the plaintiff.
VI. Liquidated damages @ 10% of contract price from the plaintiff amounting to Rs. 9,03,595.60.
86. Counsel for the defendant has argued that the defendant is entitled for liquidated damages as per clause 16.0 of GCC Ex. DW-1/5 for delay in the contract. It was argued that BHEL had invoked liquidated damages clause on the defendant and has charged Rs. 11,90,000/- on the defendant vide invoice dated 30.01.2021. Since the plaintiff was not performing its contractual obligation and the project was getting delayed, defendant vide email dated 02.01.2021 asked the plaintiff to offer explanation as to why liquidated damages clause should not be invoked on them. It was argued that as per the contract between the parties, defendant is entitled to liquidated damages @ 10% of the total contract price which comes to Rs.9,03,595.60.
87. Per contra, counsel for the plaintiff has denied the claim of the defendant and has argued that defendant has not placed on record any document to show that it had suffered losses or that BHEL had invoked liquidated damages against the defendant. It was argued that in the absence of any losses Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 53 of 60 SISODIA 2026.03.23 15:44:09 +0530 proved by the defendant, defendant is not entitled to recover any amount from the plaintiff.
88. The object of liquidated damages is to compensate the injured party for the losses that are caused to it due to the act/omission of the other party. Liquidated damages are not a means to punish a party but rather to compensate a party for the losses suffered by it. Generally, a mere breach of contract does not automatically figure the payment of liquidated damages and the claimant must prove that it had suffered some losses and the only exception is where damages are impossible or very difficult to quantify. Section 74 of the Contract Act deals with the concept of liquidated damages. Section 74 of the Contract Act provides for compensation for breach of contract when a specific sum is named or a penalty is stipulated. It provides for a reasonable compensation to the party claiming breach, whether 'actual loss or damage' has been proved or not. This provision was interpreted by the Hon'ble Supreme Court in Kailash Nath Associates vs. DDA 2015 (4) SCC 136 wherein it was held that the expression "whether or not actual damage or loss is proved to have been caused thereby" is intended to cover different classes of contracts which come before the Courts. In case of breach of some contracts it may be impossible for the Court to assess compensation arising from breach, while in other cases compensation can be calculated in accordance with established rules. Where the Court is unable to assess the Digitally signed ANIL by ANIL KUMAR CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 54 of 60 SISODIA 2026.03.23 15:44:08 +0530 compensation, the sum named by the parties if it be regarded as a genuine pre-estimate may be taken into consideration as the measure of reasonable compensation, but not if the sum named is in the nature of a penalty. Where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by him.
89. In the present case, perusal of the record would show that defendant has not placed any documentary evidence to establish that it had suffered losses due to the breach of contract by the plaintiff. Even though, defendant has claimed that BHEL had invoked liquidated damages clause and recovered a sum of Rs. 11,90,000/- from the defendant but defendant has not proved on record either the invoice raised by BHEL in this regard nor has proved the payment made by it to BHEL. In the absence of any such evidence of loss being produced by the defendant, I am of the considered opinion that no liquidated damages can be awarded to the defendant. Accordingly, the claim of the defendant to recover liquidated damages of Rs. 9,03,595.60 is rejected.
VII. Deficient GST amount of Rs. 7,56,468.07 deposited by the plaintiff with GST department for supply of goods.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 55 of 60 SISODIA 2026.03.23 15:44:09 +0530 VIII. Deficient GST amount of Rs. 3,12,955.64 deposited by the plaintiff with GST department for the work of erection and commissioning.
90. These two claims are dealt with together as they both relate to deficiency in the GST amount deposited by the plaintiff with GST department and can be disposed of by common discussion.
91. The case of the defendant is that it is entitled to recover sum of Rs. 7,56,462.07 for supply and Rs. 3,12,955.64 for services part of the contract which could have been claimed by the defendant as input tax credit. It was argued that the plaintiff uploaded false, forged and fabricated invoices of lesser amount with the GST department to bring down the GST component payable by them and due to this mischievous and fraudulent act of the plaintiff, defendant could not claim input tax credit and suffered huge losses. It was further argued that defendant had informed the plaintiff about the difference noticed in the GST invoices vide email dated 15.12.2020 and further correspondences were made vide emails dated 16.12.2020, 17.12.2020, 19.12.2020, 22.12.2020, 23.12.2020 and thereafter on 04.01/2021. Counsel for the defendant has argued that these invoices have been proved by DW-1 as Ex. DW-1/9 (colly).
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 56 of 60 SISODIA 2026.03.23 15:44:09 +0530
92. Per contra, counsel for the plaintiff has argued that plaintiff has already paid the correct GST on the invoices raised by it and has placed on record all the invoices along with the GSTR-1 summary marked as Mark H. It was argued that defendant has not placed on record any GST returns showing discrepancy in the GST deposited by the plaintiff nor it has placed on record GSTR3B to show how much input tax credit was taken by it and in the absence of any such documentary evidence, the claim of the defendant cannot be entertained.
93. Perusal of the record would show that plaintiff has placed on record the copies of the invoices as Ex.PW-1/E (colly) and the true copy of summary of GST Returns have been placed on record as Mark H, whereas defendant has neither placed on record the copy of GST returns showing the input tax credit availed by it nor has produced the complete ledger to establish that the GST deposited by the plaintiff was deficient. Defendant could have easily summoned the record and examined witness from the GST department to establish that the plaintiff deposited lesser GST amount than was required but that has not been done. Defendant has merely relied upon the ledger calculation sheet Ex. DW-1/22 to claim the aforesaid amount from the plaintiff. However, it is settled in law that mere calculation sheet/ledger without corroborating documents is insufficient to prove the claim of the defendant.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 57 of 60 SISODIA 2026.03.23 15:44:09 +0530 Therefore, in my considered opinion, the defendant has failed to discharge the onus cast upon it and is not entitled to claim the amount of Rs. 10,69,423.71 being the deficient GST component.
94. In view of the aforesaid discussion, the issue no.4 is partly decided in favour of defendant/counter claimant and against the plaintiff and defendant/counter claimant is held to be entitled to recover a sum of Rs. 1,57,680/- from the plaintiff as below: -
(I) For the price of Lamp & Batten - Rs. 16,080/-
(ii) DC Change over work awarded to Unique Construction Co. - Rs.1,41,600/-
____________ Total Rs. 1,57,680/-
ISSUE No. 6Whether the defendant/counter claimant is entitled for interest on the amount of counter claim, if so, at what rate and for which period? (OPD)
95. Defendant has claimed interest @ 18% per annum from the date of filing of the suit till its realization on the ground that dispute between the parties is a commercial dispute.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 58 of 60 SISODIA 2026.03.23 15:44:10 +0530
96. However, there is no agreement between the parties regarding rate of interest payable on delayed payments.
97. In Central Bank of India Vs Ravindra & Ors., (2002) 1 SCC 367, it was held that an award of interest, pendente lite and post decree is discretionary with the courts as it is essentially governed by Section 34 of the CPC de-hors the contract.
98. Having regard to the lending rate of interest of the bank for the commercial transactions, this court is of the view that interest @10% per annum is reasonable and would serve the ends of restitutive justice. In the circumstances, Defendant/counter-claimant is held entitled to interest @ 10% per annum from the date of filing of the suit till its realization.
RELIEF CS COMM No. 1234/2022
99. In view of my findings on issues no. 1 to 4 hereinabove, suit is decreed in favour of the plaintiff and against the defendant. A decree of Rs. 14,73,284/- is passed in favour of the plaintiff and against the defendant. Plaintiff shall also be entitled to the simple interest @10 % per annum on the decretal amount from the date of filing of the suit till its realization.
Digitally signed ANIL by ANIL
KUMAR
CS (Comm.) 1234/2022 and CC No.58/2022 KUMAR SISODIA
Date:
M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 59 of 60 SISODIA 2026.03.23 15:44:09 +0530 Counter Claim No. 58/2022
100. In view of my findings on issues no. 5 and 6 hereinabove, suit is partly decreed in favour of the defendant/counter claimant and against the plaintiff. A decree of Rs. 1,57,680/- is passed in favour of the defendant/counter-claimant and against the plaintiff. Defendant/Counter-claimant shall also be entitled to the simple interest @ 10 % per annum on the decretal amount from the date of filing of the counter claim till its realization.
Parties shall bear their own costs.
Decree sheets be prepared separately for civil suit and counter claim.
File be consigned to record room after due compliance.
ANIL Digitally signed
by ANIL KUMAR
KUMAR SISODIA
Date: 2026.03.23
SISODIA 15:52:56 +0530
Announced in the open Court (ANIL KUMAR SISODIA) Dated: 23.03.2026 District Judge (Commercial Court-04) Central District, Tis Hazari Courts, Delhi CS (Comm.) 1234/2022 and CC No.58/2022 M/S ELMECO PROJECTS PVT.LTD. VS. M/S HPL ELECTRIC & POWER LIMITED Page No. 60 of 60