Delhi District Court
M/S Confoss Constructions vs The Indian Oil Corporation Limited on 2 July, 2015
1
In the Court of Sh. Rakesh Pandit, Additional District Judge3,
South East, Saket Courts, New Delhi
CS no. 443/14
M/s Confoss Constructions
Through its Partner
Sh. Trilochan Singh
E108, Greater Kailash EnclaveI,
Lower Ground Floor, New Delhi110048 ......Plaintiff
v e r s u s
The Indian Oil Corporation Limited
Refineries Division: Scope Complex, Core2,
7, Institutional Area, Lodhi Road,
New Delhi110003
Through Its
Managing Director/Chief Project Manager ...... Defendant
Date of institution : 20.11.2014
Date when order reserved : 02.07.2015
Date of Order : 02.07.2015
J U D G M E N T
1 By this judgment I will dispose of case of plaintiff for the recovery of money of Rs.14,88,094/.
2 The brief facts of the case as per plaintiff is that it is duly CS443/14 Confoss Constructions Vs Indian Oil Corporation page 1/7 2 registered Partnership Firm and appointed Sh. Trilochan Singh, its Partner, to represent it in the present case. As per the plaintiff, it is dealing in the business of construction work. Defendant is a Public Limited Company. Defendant and plaintiff entered into a contract for interior electrical, HVAC, Fire Fighting works for data centre building at IIPM Complex, Gurgaon, Haryana having contract no. PJ/E&C/DC/T80/18.
3 The project awarded does not include the service tax as per the work contract of the defendant. The defendant did not deposit the service tax at the time of the contract as it was told by the defendant's representative that the building was to be used by IOCL and as per the norms of service tax, the building to be self used is exempted from paying service tax. However vide letter dated 12.06.2006 the defendant informed the plaintiff, as per Finance Bill 200405 service tax is to be applied on Erection, Installation and Commissioning and the Owner can avail CENVAT credit on service tax paid as per new CENVAT Credit Rules 2004. CS443/14 Confoss Constructions Vs Indian Oil Corporation page 2/7 3 The quoted rates shall be exclusive of service tax @12.24%. That on the assessment of the case of the plaintiff, by the service tax department in the year 200708, Authority asked the plaintiff to pay the service tax on this contract since the building was used for commercial purposes and not for self use. The plaintiff deposited the service tax of Rs.14,88,094 on 04.03.2014. The plaintiff also wrote a letter dated 24.04.2014 along with copy of challan to the defendant but no reply was given by the defendant. Thereafter, again a reminder dated 27.05.2014 was served upon the defendant. Lastly a legal demand notice dated 06.08.2014 was sent to the defendant for payment but no amount was paid. Hence this suit. 4 Defendant was served but none appeared on behalf of defendant so it was proceeded exparte on 06.01.2015. 5 Thereafter exparte evidence was led in which plaintiff examined Sh. Trilochan Singh as its only witness. PW1 Sh. Trilochan Singh deposed in terms of the facts of the plaint and relied on following documents: CS443/14 Confoss Constructions Vs Indian Oil Corporation page 3/7 4 Sr.no. Document/Particulars Exhibit(s) pages Partnership Act Ex.PW1/1 1 (OSR) (colly) 9 Copy of the agreement Ex.PW1/2 2 (OSR) 17 Letter dated 12.06.2006 Ex.PW1/3 3 (OSR) 4 Letter shows the authorization of Ex.PW1/4 its representative M/s D. K (OSR) 4 Associates 8 Deposit the service tax on Ex.PW1/5 04.03.2014 and the various (OSR)(colly) receipts showing the deposit of 5 service tax 4 Copy of said letter dated Mark A 24.04.2014 (Ex.PW1/6 OSR in 6 affidavit) 2 Copy of letter dated 27.05.2014 Mark B (Ex.PW1/7 OSR in 7 affidavit) 1 8 Legal notice Ex.PW1/8 4 Postal receipts Ex.PW1/9 & 9 Ex.PW1/10 1 CS443/14 Confoss Constructions Vs Indian Oil Corporation page 4/7 5 6 After the closure of PE, final arguments were heard. 7 I have gone through the plaint, documents on record, evidence and heard final arguments addressed by the counsel for the plaintiff.
8 From the perusal of Ex.PW1/1, it appears that plaintiff is a duly registered Partnership firm and Sh. Trilochan Singh is one of the registered Partner and properly authorized to institute and lead evidence in the present case. From the perusal of Ex.PW1/2, it appears that a contract agreement was entered between plaintiff and defendant for Interior Electrical, HVAC, Fire Fighting etc., for data centre building at IIPM Complex, Gurgaon, Haryana. From the perusal of Ex.PW1/3, it appears that while putting tender, the plaintiff have stated that service tax will be extra. From detailed letter dated 12.06.2006, it appears that the defendant had accepted the unit rates given by the plaintiff except the service tax i.e. service tax is not included in the said amount. From the perusal of Ex.PW1/5, it appears that plaintiff had paid Rs.14,88,094/ as service tax to the government for the work done at the IIPM Complex, Gurgaon, CS443/14 Confoss Constructions Vs Indian Oil Corporation page 5/7 6 Haryana. So, in these circumstances, the service tax paid by the plaintiff is liable to be recovered from the defendant. From the perusal of record, it appears that the plaintiff had demanded this amount from the defendant by serving legal notice Ex.PW1/8 through Ex.PW1/9 and Ex.PW1/10, but no amount was paid and this is recoverable from the defendant. So, on account of unrebutted testimony of PW1, plaintiff is able to prove its case that it is entitled to recovery of Rs.14,88,094/ paid as service tax, from the defendant.
9 As far as the interest amount is concerned, the amount was paid by the plaintiff to the Government Department and now the plaintiff is seeking recovery of the same from the defendant. So, this is not a contractual obligation, hence, the rate of interest i.e. @24% per annum, demanded by the plaintiff is exorbitant. So, the court awards interest @6% per annum from the date of payment made by the plaintiff i.e. 04.03.2014. So, the plaintiff is able to prove its case. 10 So, the suit of the plaintiff is decreed with following reliefs: CS443/14 Confoss Constructions Vs Indian Oil Corporation page 6/7 7
(i) The suit of the plaintiff is decreed against the defendant for the recovery of Rs.14,88,094/.
(ii) Pendentlite and future interest is awarded @6% per annum w.e.f 04.03.2014.
(iii) Cost of the suit is also awarded.
11 Decree sheet be prepared.
12 File be consigned to Record Room.
Announced in the open court (Rakesh Pandit) on 02.07.2015 Addl. District Judge03, South East, Saket Courts, New Delhi CS443/14 Confoss Constructions Vs Indian Oil Corporation page 7/7 8 CS no. 443/14 M/s Confoss Constructions Vs. Indian Oil 02.07.2015 Present: Sh. Saket counsel for plaintiff.
Defendant exparte.
Final arguments heard.
Put up for order today itself.
(Rakesh Pandit)
Addl. District Judge03, South East,
Saket Courts, New Delhi/02.07.2015
At 4.00 p.m.
Present: None.
Vide separate judgment announced and dictated in open court the suit of the plaintiff is decreed for the recovery of Rs.14,88,094/ against the defendant. Pendentlite and future interest is awarded @6% per annum w.e.f. 04.03.2014. Cost of the suit is also awarded.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
(Rakesh Pandit) Addl. District Judge03, South East, Saket Courts, New Delhi/02.07.2015 CS443/14 Confoss Constructions Vs Indian Oil Corporation page 8/7