Delhi District Court
Rajeev Tiwari vs M/S Umang Town Planner Pvt. Ltd on 15 February, 2024
IN THE COURT OF SHRI ARVIND KUMAR :
DISTRICT JUDGE (COMMERCIAL COURT-01)
EAST DISTRICT
KARKARDOOMA COURTS : DELHI
CS (Comm) No. 310/2022
Shri Rajiv Tiwari
Prop. Of M/s Rajiv Enterprises
Through its AR Shri Vikash Tiwari
107/108, 3rd Floor, Rangpuri
Mahipalpur, Delhi - 110037 ................Plaintiff
Versus
M/s Umang Town Planner (P) Ltd.
79A, Pocket-A-3
Mayur Vihar, Phase-III
New Delhi - 110096 .............Defendant
Date of institution : 10.10.2022
Date of reserving judgment : 07.02.2024
Date of judgment : 15.02.2024
JUDGMENT:
1. The plaintiff has filed the present suit for recovery of a sum of Rs.13,11,144/- against the defendant alongwith pendente lite and future interest @ 12% per annum.
2. In brief, the facts as averred in the plaint are that the plaintiff is the proprietor of M/s Rajiv Enterprises and engaged in the business of labour supply, civil construction and other allied works. The defendant is a private limited company and is engaged in the business of Civil Construction, Supply of machine etc.
3. It is averred that the defendant approached the plaintiff for supply of labour to execute some part of the job for CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 1 of 20 the Project CC-95, for which the plaintiff deployed labour from February 2017 to April 2017. Apart from this, the defendant further awarded work order to the plaintiff bearing no. LMRC/LKC007/01 dated 19.06.2017 for their project at Lucknow which was awarded to defendant by L&T Ltd.
4. It is further averred that DMRC awarded the work to M/s Metcon India Reality and Infrastructure Pvt. Ltd., who further awarded it to defendant. Defendant awarded the said work to plaintiff for the Project CC-95 (construction of viaduct, roof portal and finishing work for automatic walkway/travellators at Dhaula Kuan Interchange Station of line 7 of Phase-III, Delhi MRTS). The plaintiff supplied the labour for Rs. 9,30,126/- during the above said period which was certified by defendant and defendant also released an amount of Rs. 75,000/- through cheque and Rs. 10,000/- in cash. It is averred that an amount of Rs. 9,300/- was deducted towards TDS and an amount of Rs. 4,244/- was debited by defendant on account of store debit leaving an outstanding balance of Rs. 8,31,582/-.
5. Further, it is averred that the defendant finalized the bill for Rs. 8,31,582/- and withheld the amount of Rs. 1,31,104/- towards non-submission of EPF and ESIC Challan. Plaintiff deposited the amount of EPF and ESIC and submitted the challan with defendant who failed to release the outstanding payment. The plaintiff then visited the office of M/s Metcon India Reality and Infrastructure Pvt. Ltd. and requested to release the payment of CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 2 of 20 Rs. 8,31,582/- of the plaintiff which was outstanding towards defendant.
6. It is averred that the plaintiff sent letters dated 11.02.19 and 15.07.19 to the defendant for release of the payment and accordingly a cheque for Rs. 75,000/- and Rs. 10,000/- in cash and Rs. 9,300/- was debited toward TDS against Project CC-
95. It is further averred that on 13.10.2017, the defendant issued a letter to their contractor namely M/s Metcon India Reality and Infrastructure Pvt. Ltd. to release the amount of plaintiff against final bill upto April 2017.
7. Further it is averred that due to non-receipt of the payment, plaintiff sent a legal notice dated 08.03.2019 and legal demand notice dated 17.07.2019 in Form-3 to the defendant but despite that, the defendant failed to release the outstanding amount to the plaintiff.
8. It is further averred that the plaintiff thereafter filed a petition under Section 9 of the IBC 2016 before the Hon'ble NCLT which was decided on 21.12.2021 and as per the said order, IRP was appointed and as per the order of NCLT, plaintiff deposited Rs. 2 lacs with CIRP namely Mr. Anoop Prakash Awasthi. The CIRP approved the claim of plaintiff for an amount of Rs. 10,61,144/-. A COC (Committee of Creditors) was formed and a settlement was executed between the defendant and the financial creditor (HDFC Bank Ltd.). As 90% was due of the financial CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 3 of 20 creditor, moved an application before the Hon'ble Tribunal for withdrawal as per the provisions of the IB Code, 2016. The said application was allowed on 28.07.2022 granting liberty to the plaintiff to file its claim as per law.
9. The plaintiff thereafter, filed application under Section 12A of the Commercial Court Act for initiating pre- litigation mediation but since defendant did not appear before the mediation centre despite issuance of summons, a non-starter report dated 17.09.2022 was issued.
10. Defendant was duly served with the summons of the suit. Defendant filed its written statement. In the preliminary objections, defendant has alleged that it had paid all the dues to the plaintiff and further that the present suit is barred by limitation as the suit has been filed after the expiry of three years from the date when the cause of action arose. Further it is alleged that on 17.10.2018, the plaintiff himself wrote a letter to defendant wherein he had affirmed that nothing is due and payable to him on account of the contract between plaintiff and the defendant. Other allegations in the plaint were specifically and categorically denied.
11. The plaintiff filed replication to the written statement of the defendant and all the averments made in the plaint were reiterated and reaffirmed.
12. Vide order dated 25.08.2023, the defendant no. 2 CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 4 of 20 M/s Metcon India Reality and Infrastructure Pvt. Ltd. was deleted from the array of the parties.
13. From the pleadings of the parties, following issues were framed on 25.08.2023 itself :
1) Whether the plaintiff is entitled for a decree against the defendant in the sum of Rs.13,11,144/- alongwith interest, if any and if yes, at what rate and for which period? OPP
2) Whether the present suit is barred by limitation? OPD
3) Relief.
14. The plaintiff examined himself as PW1. He deposed the facts as stated in the plaint, by way of affidavit Ex.PW1/A and tendered in evidence the documents which are as under :
SPA dated 22.9.2022 in his favour as Ex.PW1/A (colly.). (Page 14-16) Master Data of the defendants as Ex.PW1/B (Page
17) Certified Copy of the petition filed before the Ld. NCLT, Delhi as Ex.PW1/C (colly.). (Page 18-54) Ledger for the period 2016-2017 and 2017-2018 as Ex.PW1/D (colly.). (Page 55-56) Certified copy of ESIC Challan as Ex.PW1/E (colly.). (Page 57-62) Certified copy of Letter dated 13.10.2017 as Ex.PW1/F. (Page 63) Bank Statement of the plaintiff for the period 01.1.2017 to 17.12.2019 as Ex.PW1/G (colly.).
(Page 64-127). Certificate under Section 65-B in CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 5 of 20 support thereof, issued by his Accountant Shri Lokesh Kumar Mishra is annexed at Page No. 128. Certified copy of reply filed by defendant No. 1 before the Ld. NCLT, Delhi as Ex.PW1/H (colly.) (Page 129 to 143).
Photocopy of rejoinder filed by the plaintiff to it as Mark A (colly.). (Page 144 to 151) Photocopy of Legal Notice dated 08.3.2019 as Mark B (colly.). (Page 152 to 156) Letter dated 11.2.2019 (has been mentioned as Ex.PW1/I. However, the same is de-exhibited being photocopy and now marked) as Mark C. (Page 157) Letter dated 15.7.2019 PW1/J. (Page 158).
Certified copy of Order dated 21.12.2021 passed by the Ld. NCLT, Delhi as Ex.PW1/K (colly.). (Page 159 to 172) Certified copy of Order dated 28.7.2022 of the Ld. NCLT, Delhi as Ex.PW1/L (colly.). (Page 173 to
174) Non-Starter Report from the DLSA as Ex.PW1/M. (Page 175) E-mail dated 29.4.2022 as Ex.PW1/N . (Page 176) Certificate under Section 65-B of the Indian Evidence Act in support of computer generated documents as Ex.PW1/O. (Page 177-178)
15. Defendant examined Shri Rupesh Kumar -
Authorized Representative as DW1 who tendered his evidence by way of affidavit stating the facts as stated in the written statement and relied upon the following documents:-
The Board Resolution in favour of Shri Vinay CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 6 of 20 Kumar Singh as Ex.DW1/1. (Page 31) Authorization Letter issued by Shri Vinay Kumar Singh in favour of DW1 as Ex.DW1/2. (Page 32) Copy of letter dated 17.10.2018 already Ex.PW1/DA (Page 136).
16. I have heard Shri Manoj Sharma - Ld. Counsel for the plaintiff and Mohd. Shamim - Ld. Counsel for the defendant and have also gone through the written submissions filed by the both the Ld. Counsels, as well as records of the case.
My issue-wise findings are as under:
ISSUE No. 1 :
17. PW1 deposed that the defendant approached to the plaintiff for supply of labour to execute some part of the job for the Project CC-95 and the plaintiff had deployed labour from February 2017 to April 2017 (the work was related to construction of viaduct, roof portal and finishing work for automatic walk way/travellators at Dhaula Kuan Interchange Station of line 7 of Phase-III, Delhi, MRTS) and the amount due against the said project was Rs. 9,30,126/- out of which 75,000/- through cheque and Rs. 10,000/- by cash was paid and further an amount of Rs. 9,300/- was deducted towards TDS and an amount of Rs. 4244/- was debited by defendant no. 1 on account of store debit leaving the outstanding balance of Rs. 8,31,582/-. PW1 further stated that the plaintiff has deposited the amount of EPF and ESIC for the said amount. The plaintiff has proved the ledger for the period 2016-17 and 2017-18 as Ex. PW1/D (colly). Plaintiff has also CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 7 of 20 proved the ESIC challan as Ex. PW1/E. Besides the above documents, the plaintiff has placed on record copy of letter dated 13.10.17, Ex. PW1/F written by defendant to their contractor namely M/s Metcon India Reality and Infrastructure Pvt. Ltd. to release the amount of plaintiff against the final bill upto April 2017. The bank statement is also produced by the plaintiff and exhibited as Ex. PW1/G.
18. PW1 has also proved the order dated 21.12.2021, Ex. PW1/K passed by Hon'ble NCLT under Section 9 of Insolvency and Bankruptcy Code (IBC), 2016. PW1 stated that he has preferred an application under Section 9 IBC and an Insolvency Resolution Professional (IRP) was appointed with the direction to the plaintiff to deposit Rs. 2 lac with the said IRP and the same was deposited by him. Plaintiff submitted its claim on 25.04.22 with CIRP and CIRP approved the claim of the plaintiff for an amount of Rs. 1061133/- (outstanding amount of Rs. 831582/- and Rs. 229562/- towards interest). PW1 also stated that the financial creditor (HDFC Bank Ltd.) settled the matter with the defendant as 90% of the due amount of financial creditor were paid to it and thus, on the application filed by defendant, the NCLT allowed the withdrawal of the CIRP proceedings vide order dated 28.07.2022. However, liberty was granted to the plaintiff to work out its remedy against corporate debtor (defendant) in accordance with law. The plaintiff has placed on record the reply filed by defendant before NCLT, Ex. PW1/H. CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 8 of 20
19. During cross-examination the plaintiff stated that the defendant undertook two projects with the plaintiff namely CC-07 LMRC at Lucknow and CC-095 DMRC at Dhaula Kuan, New Delhi. The plaintiff had supplied labour to defendant for the project no. CC-095 for three months from January to March 2017. PW1 admitted during cross-examination that no dues certificate dated 17.10.2018, Ex. PW1/DA was issued to defendant, however, clarified that the said certificate was in respect of project no. CC-07. The testimony of the plaintiff is consistent and reliable.
20. DW1 Shri Rupesh Kumar has deposed that the plaintiff has issued no dues certificate dated 17.10.18 Ex. PW1/DA in respect of outstanding balance against the defendant and thus, no amount is due to be paid by the defendant to the plaintiff.
21. It is pertinent to note that the defendant has taken inconsistent stand as during cross-examination of PW1, a suggestion was put to PW1 that the plaintiff had not supplied any labour to defendant for project no. CC-095 while in the written statement, the defendant has clearly admitted the aforesaid fact in as much as the defendant did not give any specific reply and has only stated that these facts are matter of record. Thus, it is clear from the testimony of PW1 as well as from the documents on record coupled with admission on the part of defendant that the plaintiff has supplied labour in respect of project CC-95 (construction of viaduct, roof portal and finishing work for CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 9 of 20 automatic walkway/travellators) at Dhaula Kuan Interchange Line Phase-III, by DMRC during the period February 2017 to April 2017. This is further corroborated as the DW1 also admitted that invoice for April 2017, Ex. PW1/C (page no. 54) bear his signature and has also admitted that letter dated 13.10.17, Ex. PW1/F was issued by him.
22. So far as the case of defendant that it had cleared all the dues of the plaintiff and same is reflecting from letter dated 17.10.2018, Ex. PW1/DA is concerned, plaintiff has categorically stated that the letter dated 17.10.18 Ex. PW1/DA is in respect of other project no. CC-07 i.e. with regard to the labour supplied by the plaintiff in respect of the Lucknow project. The plaintiff/PW1 has clarified this fact in his testimony. Further DW1, Shri Rupesh Kumar, Director of defendant had admitted that the plaintiff had worked for the defendant at the site at Lucknow. DW1 also stated that Ex. PW1/DA was issued in respect of the project CC-07 at Lucknow. Thus, the aforesaid admission on the part of the DW1 leaves no doubt on the point that the letter dated 17.10.18, Ex. PW1/DA was in relation to the project no. CC-07 at Lucknow and not relating to Project No. 0095.
23. Now it leaves us to the short question whether the defendant made any payment to the plaintiff towards the project CC-095 at Dhaula Kuan, Delhi. DW1 during cross-examination stated that the aforesaid project no. CC-095 was done by the plaintiff on the instructions of M/s Metcon India Reality and CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 10 of 20 Infrastructure Pvt. Ltd. and not on his instructions and he had made payments to the plaintiff in respect of the said project on the instructions of M/s Metcon India Reality and Infrastructure Pvt. Ltd. The aforesaid explanation by the defendant is contrary to what defendant has stated in his written statement. No such plea has been taken by the defendant in its written statement and the sole defence of defendant regarding dues of the plaintiff is that entire payment has been made and letter dated 17.10.18 Ex. PW1/DA was issued by the plaintiff. The defendant failed to place on record any document to show that defendant had made payment to plaintiff for the amount due in respect of Project No. 0095. It cannot be believed that plaintiff worked on the project CC-095 on the instructions of M/s Metcon India Reality and Infrastructure Pvt. Ltd. DW1 has admitted the invoice for April 2017 Ex. PW1/C and has also admitted his signature on letter dated 13.10.17 Ex. PW1/F. The contents of this letter dated 13.10.17 are relevant and are reproduced hereunder:-
"We are requested to you that Please release amount against on behalf of Umang Town Planner pvt. Ltd. debited amount in our account Rs. 700478/-, to give Rajiv Enterprises against final bill up to April 2017."
24. The perusal of the said letter clearly show that this letter was written by defendant to M/s Metcon India Reality and Infrastructure Pvt. Ltd. thereby requesting the Manager, M/s Metcon India Reality and Infrastructure Pvt. Ltd. to release amount of Rs. 7,00,478/- to be given to the plaintiff against final CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 11 of 20 bill upto April 2017. This letter was written by Shri Rupesh Kumar, DW1 who is the Director of defendant company in the capacity of being the Authorized Signatory. At the bottom of the letter, it is clearly mentioned "for Umang Town Planner Pvt. Ltd. (Authorized Signatory)". Further it clearly shows that defendant was awarded work by M/s Metcon India Reality and Infrastructure Pvt. Ltd. and defendant has further awarded this work to plaintiff. In the written statement filed by the defendant, it did not deny having awarded the work of Project No. 95 to the plaintiff.
25. Thus, in view of above discussions, the issue no. 1 is decided in favour of plaintiff and against the defendant. Therefore, the plaintiff is entitled to Rs. 13,11,144/- from the defendant alongwith interest @ 12% per annum as agreed between the plaintiff and the defendant.
Issue no. 2
26. The next issue to be decided is whether the suit of the plaintiff is barred by limitation.
As per plaintiff, the cause of action arose during the period February 2017 to April 2017 when the work force was provided by the plaintiff to defendant in respect of project CC-095 at Dhaula Kuan. The plaintiff had approached the NCLT on 20.12.19 when it had filed application under Section 9 of IBC and the Ld. NCLT had disposed of the matter vide order dated 28.07.2022 thereby granting liberty to the plaintiff to work out its CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 12 of 20 remedy against defendant in accordance with law. Ld. Counsel for the plaintiff submitted that this period from 20.12.19 to 28.07.2022 is liable to be excluded while computing the period of limitation in terms of Section 14 of Limitation Act. Ld. Counsel for plaintiff relied upon the judgments in Sesh Nath Singh & Anr. Vs Baidyabati Sheoraphuli Co-operative Bank Ltd. and Anr., Civil Appeal No. 9198 of 2019; Shakti Tubes Vs State of Bihar 2009 (75) AIC95; Rameshwarlal vs Municipal Council, Tonk and Ors. 1997(1) SCT485(SC); Roshanlal Kuthalia and Ors. Vs RB Mohan Singh Oberoi AIR 1975SC824; Union of India and Ors. Vs West Coast Paper Mills Ltd. and Anr.(III) (2004) 3 SCC 458; P. Sarathy vs State Bank of India 2000 AIR(SC) 2023; MP Steel Corporation vs Commissioner of Central Excise (2015) 7 SCC 58; National Seeds Corporation Ltd. and Ors. Vs Ram Avtar Gupta MANU/DE/5728/2023.
27. On the contrary, Ld. Counsel for the defendant submits that the proceedings under IBC are not money recovery proceedings and that Section 14 of The Limitation Act has no application and aforesaid period cannot be excluded. Ld. Counsel for defendant relied upon the judgments in M/s Invent Asset Securitisation and Reconstruction Pvt. Ltd. vs M/s Girnar Fibres Ltd. 2022 LiveLaw (SC) 423; GRI Towers India Pvt. Ltd. vs Inox Wind Ltd. Company Appeal (AT) (Insolvency) No. 1106 of 2023.
28. So far as the filing of the application under Section 9 CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 13 of 20 IBC and proceedings before NCLT are concerned, the defendant has not disputed the aforesaid proceedings. PW1 Shri Rajiv Tiwari has already exhibited order dated 21.12.21 Ex. PW1/K and of 28.07.22, Ex. PW1/L passed by Ld. NCLT.
29. Here it will be appropriate to reproduce the relevant portion of the judgment passed by the Hon'ble Supreme Court titled Commissioner, M.P. Housing Board vs M/s Mohanlal & Company Civil Appeal No. 6573 of 2016 which reads as under:-
"14. Exclusion of time of proceeding bonafide in court withoud jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."
In Consolidated Engineering Enterprises vs Principal Secretary, Irrigation Department and others, the Hon'ble Supreme Court has enumerated five conditions which are reproduced as under:-
"(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith;
(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;CS (Comm) No. 310/2022
Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 14 of 20 (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court."
30. Hon'ble Supreme Court in the judgment delivered in Shakti Tubes vs State of Bihar observed as under:-
"that the time taken by the petitioner in prosecuting the proceeding before Hon'ble High court in Writ Petition was to be excluded as the High Court declined to grant relief to the petitioner in which proceedings and the petitioner cannot be left remediless."
31. Similar view was taken by the Hon'ble Supreme Court in the earlier case titled Rameshwar lal vs Municipal Council, Tonk & Ors.
32. Further in the judgment Union of India & Ors. Vs West Coast Paper Mills Ltd. & Anr., Hon'ble Supreme Court held that Section 14 is wide in application and is not confined to case of defect of jurisdiction but is also applicable where proceedings have failed on account of cause of like nature.
33. In the judgment P. Sarathi vs State Bank of India, Hon'ble Supreme Court held that authority of tribunal having trappings of a court would be a court within the meaning of Section 14 of The Limitation Act. Similar view was taken by Hon'ble Supreme court in MP Steel Operations vs Commissioner of Central Excise.
CS (Comm) No. 310/2022Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 15 of 20
34. It is clear from the aforesaid settled position of law that Section 14 of The Limitation Act can be applied only when the plaintiff has been prosecuting another civil proceeding in a court against the defendant and the proceeding must relate to same matter in issue and is prosecuted in good faith and which from defect of jurisdiction or the other cause of like nature, cannot be entertained.
35. It is apparent that the proceedings before NCLT under IBC Code 2016 are the civil proceedings and the NCLT falls within the trappings of the "court" as referred in Section 14 of The Limitation Act, 1963. It has also come on record that the proceedings before the NCLT were prosecuted by the plaintiff with due diligence and in good faith. There is no negligence or lapse noted by the NCLT on the part of plaintiff in the aforesaid proceedings. It has also come on record that the proceedings before the NCLT were closed at the instance of IRP (Interim Resolution Professional) who has filed the application for such withdrawal at the instructions of the sole financial creditor, and further liberty was granted to the Operational Creditor, plaintiff herein to work out his remedy as against the CD (Corporate Debtor).
36. The earlier proceeding before the NCLT and the present proceedings also relate to the amount to be paid by the defendant in respect of Project No. 0095. It has been categorically CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 16 of 20 observed by the Hon'ble Supreme Court that the provisions of Section 14 has to be widely interpreted and Hon'ble Supreme Court has granted the benefit of Section 14 to the parties when the proceedings before the courts were different as in the aforesaid judgment of Shakti Tubes (supra), the plaintiff was pursuing the remedy under Writ jurisdiction which failed and subsequently filed suit for recovery.
37. The case titled GRI Tower India Ltd. vs Inox Wind Ltd. Company Appeal (AT) (insolvency) No. 1106/2023 by NCLAT does not apply to the facts and circumstances of the present case. In the said case, benefit of Section 14 Limitation Act was not granted to petitioner as he withdrew the recovery suit filed by him and no liberty was granted to him to institute fresh suit, while in the matter in hand, the NCLT has granted liberty to the plaintiff to work out its remedy against defendant in accordance with law.
38. In view of the above discussion, I am of the opinion that the time consumed in the proceedings before NCLT i.e. w.e.f. 20.12.2019 to 28.07.2022 is liable to be excluded while calculating the period of limitation for filing the present suit.
39. Having held that Section 14 of The Limitation Act will apply in the present matter, it is clear that the present suit has been filed within limitation period.
CS (Comm) No. 310/2022Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 17 of 20
40. It is pertinent to mention that even if the plaintiff is not granted benefit of Section 14 of the Limitation Act, the suit of the plaintiff is filed within limitation period. It is important to note that Hon'ble Supreme Court in the judgment In Re. Cognizance for extension of limitation, Suo moto Writ Petition (C) No. 3/2020 has laid down certain guidelines for exclusion of time when there was outbreak of Covid-19. Hon'ble Supreme Court observed as under:-
"I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021. It is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi- judicial proceedings.
II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12 A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings."
41. Thus, it is clear from the observations of the Hon'ble CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 18 of 20 Supreme Court that the period from 15.03.2020 to 28.02.2022 shall be excluded while calculating the limitation period for filing of any application or suit.
42. In the matter in hand, the cause of action for filing the suit has arisen from February 2017 to April 2017 when labour was supplied by plaintiff to defendant for which the challan/bills in respect of Project CC-095 were raised. PW1 during his examination has proved the letter dated 13.10.2017, written by Shri Rupesh Kumar, DW1, Director of defendant company in the capacity of being the Authorized Signatory, demanding sum of Rs. 700478/- from M/s Metcon India Reality & Infrastructure Pvt. Ltd. to be given to the plaintiff company. The said letter is admitted by the defendant during his evidence.
43. The contents of letter dated 13.10.2017 are as under:-
"We are requested to you that Please release amount against on behalf of Umang Town Planner pvt. Ltd. debited amount in our account Rs. 700478/-, to give Rajiv Enterprises against final bill up to April 2017."
The said letter is an acknowledgment of liability in respect of the amount due to the plaintiff and the limitation period will start from 13.10.2017 and will be ending on 12.10.2020. The plaintiff will be entitled to further exclusion of period from 15.03.2020 to 12.10.2020 i.e. six months and 27 days in view of the judgment passed by the Hon'ble Supreme Court in suo motu writ petition (c) no. 3 of 2020. Thus, the plaintiff could have filed CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 19 of 20 its suit till 27.09.2022. The plaintiff has approached the Mediation Cell at Karkardooma Court under Section 12A of the Commercial Courts Act on 25.08.2022 and the non-starter report was issued on 17.09.2022. The present suit has been filed on 10.10.2022. Thus, the present suit is filed within limitation and this issue is answered accordingly.
ISSUE No.3/Relief :
44. In light of the above discussion and findings on the above issues, the suit of the plaintiff is decreed in its favour and against the defendant and defendant is directed to pay to the plaintiff a sum of Rs. 13,11,144/- alongwith interest @ 12% per annum from the date of filing the suit till realization of the actual amount.
Costs of the suit are also awarded to the plaintiff. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN OPEN COURT ON 15th day of February 2024 (ARVIND KUMAR) District Judge (Commercial Court-01) East District Karkardooma Courts, Delhi CS (Comm) No. 310/2022 Rajiv Tiwari vs M/s Umang Town Planner (P) Ltd. 20 of 20